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LEGAL INSIGHT YOU CAN USE - WHAT YOU NEED TO KNOW TO DEFEND YOURSELF WHEN THE GOVERNMENT COMES KNOCKING!

By Neil B. Caesar, Esq.

President, Health Law Center

A team of dark-suited gentlemen stride purposefully into your reception area, and ask to see the person in charge. When you come out to meet the visitors, they announce that they are with the Federal Government -- your carrier's, intermediary's or DMERC's fraud unit, or the United States Attorney's Office, perhaps, or the FBI or the Office of Inspector General -- and that they want to see patient files and other documents. Perhaps they even have a warrant to seize documents and other materials. What do you do?

INTRODUCTION

Providers who think this is a far-fetched scenario which could never happen to them are, to be blunt, naive. Government enforcement efforts are more aggressive and plentiful than ever before. Government scrutiny of possible fraud goes far beyond looking at intentional duplicity by venal healthcare providers. Virtually every provider violates federal or state rules from time to time, frequently inadvertently. Repeated patterns of errors, utilization or coding decisions that vary significantly from normal parameters, and problems caused by other parties with whom you have financial dealings - all of these can lead to focused scrutiny by the government.

IT IS IMPERATIVE FOR ALL PROVIDERS TO HAVE IN PLACE A WRITTEN POLICY FOR DEALING WITH GOVERNMENT INVESTIGATIONS. As part of your Compliance Program, these policies should deal with document requests, on-site inspections, interviews, and search warrants. Each employee in your organization should understand what is expected of him during an investigation.

Let's examine the four steps to take when investigators show up for an inspection or to execute a search warrant:

STEP ONE: LINE UP YOUR RESOURCES

Your first step is to gather your resources and obtain essential preliminary information. Ask to see identification from the person in charge of conducting the inspection or executing the search warrant. Take notes of all pertinent information -- name, location, agency, title, etc.

Also ask for a copy of the subpoena, warrant or other authorizing document. Read it carefully, and jot down key information. (The agents will probably have an extra copy for you.) Ask if an affidavit was submitted to a court or some other official body, as a prerequisite to obtain the authorization. If the answer is "no," find out how the authorization was issued. If permission from a judge or other entity was necessary, an affidavit will have been submitted in support of the request. Ask for a copy of that affidavit, read it carefully, and make note of key information.

NEXT, CALL YOUR ATTORNEY! You should already have on your speed dial the telephone number of your local corporate counsel, and the number of a health law specialist. If you are lucky, you may have local healthcare counsel with specific experience and expertise in dealing with federal and state government problems. If not, work with an out-of-town specialist, including local counsel in the loop, to coordinate responsibilities in the event of government scrutiny -- before you are part of an investigation, if possible. You must have someone close by who can get to your office if necessary. And you must have someone who understands health law issues and government investigations. If they are not the same person, the team must work together.

If you are faced with a search warrant, tell your lawyer the time the warrant was served, which areas the warrant states are to be searched, the sorts of evidence the warrant states are to be seized, and the agencies (law enforcement and regulatory) who are involved. All of this information was obtained by discussion with the person in charge and by your review of the warrant and/or affidavit. If the authorizing document is not a search warrant, tell your attorney all the relevant information from it. Regardless, your lawyer may want to speak with the agent in charge.

Usually the agents will be unwilling to wait for your attorney to arrive. Most often, they will begin the investigation immediately, so it is imperative to know what to do when you have no legal aid on premises.

STEP TWO: USE AND MISUSE OF PERSONNEL

PICK ONE EMPLOYEE NOW TO BE IN CHARGE OF THIS SORT OF PROBLEM. Your selected person (it may be you) should be responsible for keeping an eye on everything and interacting with the agents in charge of conducting the inspection or investigation, or executing the search warrant. Depending on the scope of the investigation, you may need more than one person to monitor the investigation. But one person should be in charge of the overall coordination. Then, have your designated "in-charge" person introduce himself or herself to the agents, especially the agent in charge, and request that all questions or comments from the agents be directed to that person.

All of your "in-charge" personnel must take careful notes throughout the investigation. They should record type and location of all evidence reviewed or seized, with as much detail as possible. It is important to identify all documents, photographs, computer records, software and/or hardware, video and audio recordings, etc. which have been reviewed or seized by the agents. If your people do not antagonize the agents, the agents will probably be somewhat patient with this note-taking and identification process. However, if the agents are executing a search warrant, they will not slow down the process, or allow your employees to interfere with the search in any way.

Next, speak to all of your personnel. If, as often is the case, it does not make sense to gather everybody together, speak to your people in clusters. THE BEST IDEA IS TO HAVE A WRITTEN POLICY ALREADY IN PLACE AND UNDERSTOOD BY YOUR PEOPLE, SO THAT ALL YOU NEED DO DURING THE INVESTIGATION IS REMIND PEOPLE ABOUT THE WRITTEN POLICY.

TELL YOUR PEOPLE NOT TO INTERFERE WITH THE INVESTIGATION IN ANY WAY. REMIND YOUR EMPLOYEES THAT THEY HAVE THE RIGHT NOT TO TALK WITH THE AGENTS. CHOOSE YOUR WORDS CAREFULLY, HOWEVER. It is dangerous to tell your employees not to talk to the agents, or to encourage them to take that stance, as the government may consider such actions to be evidence of "obstruction of justice." Make clear to your personnel that such decisions are matters of personal choice.

Regardless, make sure your people know that, if they do decide to speak to the agents, they do not have to do so at that moment. Rather, they have the right to have an attorney and/or representative of your organization present. In this regard, note that it is frequently expected (and sometimes required) that the healthcare organization pay for independent counsel to represent any employees who wish such counsel during their subsequent dealings with the government. While it is certainly permissible for your attorney to accompany interviewed personnel, your employees must understand that the organization's counsel does not represent them individually.

LET YOUR PERSONNEL KNOW THAT THE TWO MOST IMPORTANT RULES IN COMMUNICATING WITH THE AGENTS ARE TO SPEAK TRUTHFULLY, AND TO NOT SPECULATE ABOUT PAST EVENTS. If they don't know, they should say so. If they forget, they should indicate that they do not recall. If they have a partial recollection, they may speak as to what they precisely recall, but they must not try to "fill in the gaps" with guesswork or assumptions.

ALSO REMIND YOUR PERSONNEL THAT THERE IS NO SUCH THING AS AN "INFORMAL" CONVERSATION OR "OFF-THE RECORD" COMMENT WITH THE GOVERNMENT IN SUCH CIRCUMSTANCES. Health lawyers and criminal attorneys are kept quite busy correcting governmental suspicions and misdirected actions caused by careless or broad comments made by health care personnel during "routine" or "informal" discussions.

While a provider truly may have "nothing to hide," it is essential to exercise the same caution and preparation in responding to any agent question or request, including "informal" ones, as they would exercise when offering testimony during a trial or at an administrative or judicial hearing.

THE FOURTH ESTATE

Your written policy about handling investigations should require your personnel to not speak to the press about the investigation (or the search) or any related matters. You may take a stronger stand when discouraging interaction with the press than you may when discouraging interaction with the government. DO SO. BAD PRESS CAN HURT YOUR ORGANIZATION'S REPUTATION LONG AFTER YOUR PROBLEMS WITH THE GOVERNMENT HAVE ENDED.

Also, the government, deciding how aggressively to pursue a potential or ongoing investigation, pays close attention to bad press directed toward the health care organization.

To the extent possible, consider sending all non-essential personnel home (or at least off premises) until the investigators have completed their investigation and vacated the premises. This will not only reduce the danger of inappropriate or dangerous conversation, but will reduce the stress level of your people (and your owners and executives).

STEP THREE: WRAPPING THINGS UP

During the investigation, try to obtain permission to copy all documents which are to be taken. The agents may resist this request, and certainly will refuse during a search if it is not easy and quick to make such copies. At a minimum, obtain permission to make copies of certain key items. This category would include those files or papers which you need for essential day-to-day operations or other key business activities.

After all, these are the same documents you would otherwise seek to have the government copy and send back to you after the search. Inasmuch as it will take weeks or months before the government will return such copies after the request for them, try your best to make the copies before the end of the investigation.

Search warrants frequently give the agents the right to take computer software and hardware, and not just printed information. The government will sometimes be content with a download of all of your computer's information, thereby saving you from the substantial inconvenience of losing your hard drive and all of its information.

AT A MINIMUM, SEE IF YOU CAN CREATE A BACKUP OF YOUR HARD DRIVE BEFORE THE GOVERNMENT REMOVES YOUR COMPUTERS. IT IS PRUDENT TO MAKE SUCH BACKUPS ROUTINELY, SO THAT YOU CAN RETRIEVE ANY SEIZED INFORMATION.

REGARDLESS, GET A DETAILED RECEIPT FOR ALL OF THE MATERIAL TAKEN. The government will typically behave like moving men in this regard. That is, they will take vague, incomplete and frequently cryptic notes of what they have seized, present you with a receipt or voucher tied to those notes, and ask (often in a strongly worded manner) that you sign their "receipt" acknowledging the accuracy of their notes. You are not obligated to sign the receipt, and should not do so unless you are certain it is complete and accurate.

Often, if the agents are comfortable with the accuracy of the notes your personnel have taken, that can serve as the receipt. You may even be asked to sign the document, and present a copy to the government. At a minimum, you must have enough information in your notes (and in the receipt) to enable both sides to identify documents by the description.

You may need to obtain copies of the material later on. You may need to draw the government's attention to exonerating or exculpatory information in certain of the documents. Organized, descriptive notes are essential!

If the agents will not sign your notes as the receipt, it is often helpful to follow up the visit with a letter to the official in charge, including a copy of your receipt and noting that the agents were unwilling to sign it at the time of the search.

This will help demonstrate contemporaneously that you have kept a detailed inventory. This is an imperfect solution, and you should try to obtain both sides' signature on the "receipt" whenever possible.

Often, agents executing a search warrant will try to take documents which are outside the scope of an investigation or a search warrant. You (or, hopefully, your attorney if he or she has arrived) should point out that such seizure is outside the warrant, and is inappropriate.

If the agents do not have a court-ordered search warrant or subpoena permitting immediate seizure, they must comply with these refusals. (They may give you a hard time, however. Be polite, but firm.) Even if the agents are executing a search warrant, they still will frequently comply with these requests, as long as they are precise and reasonable. If they persist, however, do not attempt to prevent the seizure. Rather, just make sure that your notes clearly reflect the details of the seizure, for later appeal.

ATTORNEY-CLIENT PRIVILEGE

PERSONS EXECUTING THE INVESTIGATIONS WILL OFTEN TRY TO TAKE PRIVILEGED DOCUMENTS. In this case, advise them that the material is subject to attorney-client privilege. This danger also highlights the importance of working with your lawyer to identify and segregate privileged information - before inspection!

If you ask that the materials be kept in a sealed envelope (providing one for them) and maintained separately from the other seized items until the matter can be resolved, the agents will typically comply.

A safer course of action is to keep your privileged materials in dedicated legal files. When you co-mingle business documents and legal documents, it becomes harder to maintain the attorney-client privilege.

Regardless, it is more likely that materials will be taken -- and, often, kept -- if you mix business and legal information.

STEP 4: THE THREE MOST IMPORTANT RULES

Throughout the entire process, it is essential that you help your organization by remembering the three interrelated keys to surviving a government investigation:

·         Behave in a businesslike manner.

·         Be courteous.

·         Shut up!

Later in the process, the "shut up" principle will be replaced by the "prepare-carefully,-explain-well,-and-offer-mitigating-evidence" principle.

HERE'S THE KEY INSIGHT FOR YOU TO REMEMBER: Agents are allowed to look for evidence. They do not require you to confess, explain or annotate. Therefore, don't, don't and don't.