Develop a plan to handle investigative intrusions
Develop a plan to handle investigative intrusions
How to respond to warrants and subpoenas
As the pressure to ferret out fraud and abuse continues, government investigators and prosecutors find themselves under professional and political pressure to close big cases.
As the Office of the Inspector General’s work plan for next year shows, "billing practices, cost reporting requirements, and referral relationships are among the top general issues the government is focusing on," notes Susan V. Kayser, a health care attorney with Arent Fox Kintner Plotkin & Kahn, in New York City.
With no end in sight for the present high pace of investigations and prosecutions at the federal, state, and local levels, the "current environment is a hostile one for health care providers," stresses Kayser.
Do you know what to do should you discover your organization is the subject of a government investigation? Here are some tips from Kayser on how to address such situations to minimize any disruptions to your operations while protecting your legal rights.
• Have an effective early response. Effective handling of a government investigation is critically important, stresses Kayser. Since these investigations can take months, even years, it’s critical to take a streamlined, "business as usual" response early on that minimizes the disruption to the facility’s daily routine.
More importantly, "An efficiently handled investigation can substantially reduce the risk of a criminal indictment or civil charge," she notes.
• Dealing with search warrants and subpoenas. These are perhaps the most intimidating of the investigative tools available to the government, especially when armed agents arrive unannounced with a search warrant demanding to see and search provider documents. Whether you are hit with a subpoena or simply receive a telephone call from an auditor asking for certain information, remember that the OIG has the power to exclude a provider from the Medicare program if it fails to grant "immediate access upon reasonable request" to government officials. Obstruction-of-justice charges also can be leveled against providers who don’t cooperate with government audits and formal investigations.
• How to respond. Creating set procedures for responding to a possible government investigation should part of your overall formal compliance plan, Kayser recommends.
An effective way to develop a response plan is to designate a response team directed by someone from the management team.
One product of this planning process should be a set of guidelines outlining what rights and responsibilities employees have if you are ever investigated.
"These guidelines should begin with a reaffirmation of the facility’s commitment to high ethical standards and then advise employees that, as a routine matter, government representatives may wish to interview them on the facility’s premises during the course of an audit, when a subpoena is served, or when a search warrant has been executed," says Kayser. Employees should also be aware that:
— Government agents may contact them at home, unannounced.
— They should not destroy or alter documents once an audit or investigation has begun.
— They should talk to the response coordinator before trying to create documents in an attempt to respond to government investigators.
— They have the right to speak with an investigator, but they’re under no legal obligation to do so. In turn, if an employee consents to questioning, he or she also has the right to be interviewed in the presence of a facility representative or an attorney employed by the facility.
— If an employee wants his or her own lawyer, the facility will help arrange that.
If contacted by an investigator:
— Ask employees to inform the facility’s response coordinator of the contact.
— Before speaking with an investigator, employees should first ask for the investigator’s identification.
— Remind employees that they have the right to choose the time and place of an interview and may terminate the interview at any time.
• Dealing with search warrants. Should you be served with a search warrant, the designated response coordinator should immediately contact the organization’s lawyer. If your attorney is not immediately available, "the response coordinator should request that agents delay the search until counsel can be contacted, even though such a request is likely not to be granted," advises Kayser.
Monitoring the search
Whether or not an attorney is involved in the situation, the person acting on behalf of the facility should then:
— obtain agents’ identification and agency affiliation, and verify credentials;
— identify the agent in charge;
— communicate key information and requests only with the agent in charge;
— ask for a copy of and examine the search warrant, noting the specific areas of the facility designated for the search;
— ask for the name and telephone number of the supervising prosecuting attorney;
— ask what the agents are seeking, and attempt to ascertain the nature of the inquiry and the alleged violations that are the basis for the investigation;
— treat the agents courteously;
— urge employees to remain calm and reiterate the advice set forth in the facility’s written guidelines for employee communications with investigators, discussed above;
— advise employees not to make small talk with the agents;
— send nonessential employees home;
— monitor the actions of the search team, making notes of areas searched and the general description of items seized;
— object if agents stray outside the physical space identified in the search warrant;
— identify for the agents documents sought that fall under the attorney-client or self-evaluation privileges;
— attempt to convince the agents to take only computer files, not the entire computer hardware;
— be careful that any statements made to the agents during the course of the search are accurate;
— at the close of the search, ask for an inventory of documents taken;
— request the opportunity to make copies of all documents to be taken by agents;
— compare the list of seized documents on the government’s receipt (to be signed by the facility) with the list created by the facility during the course of the search;
— after the agents have departed, immediately inform the facility’s compliance officer of all activity in connection with the search.
While it’s important that you ask for information about nature of the investigation, "the facility should take care not to interfere with the search," Kayser stresses. Additionally, the response coordinator needs to ensure that:
— employees do not volunteer documents or information not specified in the search warrant;
— documents are not hidden, destroyed, or altered in any way;
— documents are not be created to "cover" missing documents;
— employees are not be prohibited from speaking with the agents;
— no statement, other than the government’s receipt for seized records, is signed without consulting with an attorney familiar with investigative practices.
• How to handle subpoenas. While subpoenas are less dramatic than search warrants, you still use many of the same principles to respond to them. For instance, if served with a subpoena, immediately contact your lawyer and don’t discuss anything with government agents until talking with your counsel.
Designate one person to coordinate — in consultation with your lawyer — the search for documents specified in the subpoena. Do not turn over any documents not requested in the subpoena.
All documents gathered by facility employees should be returned to the coordinator, then forwarded to your lawyer who’ll review them to determine which are not responsive to the subpoena or whether a privilege applies. No documents should be turned over to the government without final approval from counsel.
Tip: If the subpoena demands original documents be produced, make a copy for the facility’s file, using a distinguishing color of paper to identify it as a replacement for the original.
• Handling telephone, letter, and on-site requests. Less threatening and disruptive than a search warrant or a subpoena, "inquiries from government agencies that appear to be informal should not be taken lightly, especially in today’s enforcement climate," Kayser advises.
In these situations:
— Identify the agency requesting the information.
— If the inquiry is made by telephone, refer the call to the facility’s coordinator to ask about the reason for the call.
— If possible, then refer the caller to your attorney for a response.
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