What To Do When The Wolf Is At The Door: Visits from government investigators, subpoenas and search warrants.

Authors: Stephen Siegel, Esq., Bill Sutton, Jr., Esq.

Imagine the following scenarios:

- Your office has been very busy all week. It is late Friday afternoon and you are looking forward to a weekend without coverage duty. Your receptionist calls and tells you that agents from the Office of Inspector General (OIG) and the Medicaid Fraud Control Unit (MFCU) are waiting in the reception area and have asked to speak with you.

- Arriving at your office, after making hospital rounds, your new receptionist tells you that two government agents were at the office earlier this morning. They arrived as soon as the office opened and showed her their badges. The agents demanded copies of 30 patients' medical records. According to the receptionist, the agents told her that they had the authority to obtain these copies and, if she did not provide them immediately, they would return with a court order and take them. Not seeing any alternative, your receptionist gave them the records, allowed the agents to make the copies, which they took when they left the office. The original records have been returned to the filing cabinets. The agents did not leave a list of the records they demanded and the receptionist cannot remember all of the patients' names, the names of the agents or what agency they were representing.

- During a routine visit an elderly patient tells you that yesterday he was visited by two government agents who asked questions about you and whether you had provided him certain medical services. Since the services were provided several years ago the patient, naturally, told the agent that he did not remember. The agents left their cards, which the patient has brought with him to your office. Within the past month three other patients have told you about similar encounters, all of them were visited by the same two agents. Later that day your billing supervisor asks if anything is going on, because she was visited at her home by two government agents early this morning and the agents asked a lot of questions about how the business bills for services, who reviews those claims, which vendors the company does business with, where does the company get its business, and a number of other questions about its operations and your involvement. For some reason, you suddenly recall the receptionist who was fired recently and, at his exit interview, threatened to 'expose you and your practice.'

- You receive an early morning call from the manager of your pharmacy. In an agitated voice, the administrator tells you that there are agents from the FBI and MFCU, along with United States Marshals, who have a search warrant and are in the office and taking everything in site including the computers and prescription records. Without those records the pharmacy will not be able to conduct business.

- For the past three years your durable medical equipment company has purchased a box at the Miami Arena for the Heat games, where it regularly entertains vendors and individual physicians The physicians and office managers of your three most important referral sources are basketball fans and you have told them that they can use the box 'anytime' there is room. During the past three seasons one or more of them have been there for about twenty of the Heat's home games. One of these office managers just called and told you that he had just finished talking to two OIG investigators asked to review the medical records of 30 patients, all of whom had been referred to your company for DME. Because of the time it will take to gather them, the investigators have agreed to return the next day to review these records.

- Your Medicare certified home health agency receives referrals from a number of sources including a licensed home health agency that does not participate in this program, but which does receive referrals of Medicare beneficiaries from local physicians. For the past two years there has been a severe nursing shortage. In order to provide nurses for all of your patients, every time that agency refers a patient your agency retains it to provide skilled nursing services; this agency does not provide home health services for any of your other patients. The OIG notified you that it is including your agency in a Validation Review that is being conducted in conjunction with AHCA. The purpose of this study is to examine home health staffing issues, including the nursing shortage, and determine whether patient safety and care are being jeopardized.

Once you appreciate what you have been told, your questions are likely to include: 'What do I do now'; and 'What is the government looking for?' In one way or another, each of these focuses on the same issues  how to respond and minimize any fallout that may result from the investigation.

Health care providers and individuals involved in health care businesses have a number of ways to proceed. One course of action is to talk to the agents in order to find out what is going on; demonstrate that you have nothing to hide, and persuade her that there really is nothing to investigate. Another course of action is to tell employees, patients, etc., that they are not required to talk to the agents and, if they want to do so, you will go with them. A third alternative is to tell employees that they either may not talk to an agent or, if they do, they must tell you what was said. All three courses of action have one thing in common, they are wrong!

Preplanning; knowing what to do before you need to do it.

A large number of health care practitioners/providers continue to dismiss the idea of advanced planning for government investigations as an unnecessary expense and a waste of time. In some instances, they do not believe that they will ever be involved in an investigation. Other practitioners/providers seem to believe that all they will need to do is talk to the agents and that will resolve any questions or concerns the government may have.

Today, every party involved in this industry should accept the reality that he/she/it has been, is or will be the subject of a government investigation. The time to begin thinking about what to do in these situations is not after the investigators are at the door and demanding to review records, serving a subpoena or a search warrant, or when a patient or employee tells you that they have been contacted an agent. By that time, you can only react and sometimes the result compounds the problem.

The agents of the OIG, MFCU and the other agencies that regularly investigate health care practitioners and providers have more work to do than staff. These agents are well prepared for performing their responsibilities. Each of them is trained in various investigative techniques including how to interview potential witnesses and suspects. In many instances these agents have had previous experience in law enforcement. OIG, MFCU and other agents who are involved in investigating health care practitioners and providers usually conduct a significant amount of background research including (depending on the nature of the investigation) a provider's claims history and any reviews previously conducted by the carrier or fiscal intermediary, as well as the relevant standards of care, code of ethics, and the Federal health care program's (or other payer, such as worker's compensation insurance) coverage and payment policies. Thus, it is very unlikely that the government will invest its limited resources in investigations where the agents do not have some basis for suspecting that someone is engaging in activities that endanger public health, stifle competition, abuse a Federal health care program or private payor, or are prohibited by law.

Elements of a plan.

The time to think about how to respond is before there is a need to do so. In that way, the practitioner/provider is in a better position to maintain some control over the situation. It is critical to decide what role each person in the practice/business will to play, who will be responsible for knowing what is going on and directing how the organization will respond when asked for additional information, access to employees, etc. Once these decisions are made there are two further steps that need to be taken: adopting appropriate policies and procedures, and training each member of the staff so that he or she knows what their role will be.

The scenarios above illustrate the wide variety of situations in which a health care practitioner/provider can suddenly find him/her/itself faced with an unwanted visit from government investigators. These scenarios also demonstrate that there is no 'one size fits all' plan for dealing with these situations. Rather, each practice/business needs to develop a plan that is appropriate for its unique situation. Nevertheless, there are several common elements which every plan should include.

- Designate a 'Point Person'. There needs to be one person within the organization who knows what needs to be done and is able to coordinate what the organization is doing at all times. Without this coordination, there is a serious risk that the organization's efforts will be duplicated and unfocused. Worse yet, without coordination there is a danger that the organization's response will be internally inconsistent or that information will be disclosed unnecessarily or without adequate explanation.

- Educate everyone. Before they need to be implemented, staff members should know such basic procedures as who is authorized to grant access to or release patient records and other information, to whom investigators should be referred, what they can/cannot do if an investigator wants to talk to them and whether the organization will provide them with legal counsel if they agree to be interviewed.

- Retain counsel. The time to look for appropriate legal counsel is not when the government is conducting a search warrant, an investigator is demanding to review records or a subpoena is to be answered tomorrow. Every business is different and every situation is unique. In order to provide appropriate advice an experienced attorney needs to have an understanding of the practitioner's/provider's business, the risks associated with responding (for example, should the company turn over records or resist a subpoena), and the goals of the company and the individuals who will be affected by that advice.

- Written direction. Written policies and procedures cannot anticipate every possible situation. They can, however, be a great aid in developing a response that is appropriate in a given situation. Written policies and procedures also can remind staff members of what they are expected to do.

- Adopt a compliance plan. The purposes of a compliance plan include identifying the 'point person', educating the staff, and ensuring that appropriate policies and procedures are adopted. Ironically, the overall goal of a compliance plan is to minimize the need for implementing any of the plans that should have been adopted before you become aware that they are needed.