By Adrienne Dresevic, Esq. and Clinton Mikel, Esq. of The Health Law Partners, P.C.
Radiology providers and suppliers, as well as all healthcare entities, face ever increasing pressure and scrutiny from government agencies. Over the last several years there has been a significant uptick in healthcare investigations from many different government agencies. It should be no surprise that healthcare is one of the most highly regulated industries within the United States. Because of the increase in oversight and regulatory burden placed on all healthcare entities, there has been a corresponding increase in investigations. Some of the agencies which investigate healthcare include:
- Federal Bureau of Investigations
- Office of the Inspector General, Department of Health and Human Services
- United States Secret Service
- United States Postal Service Postal Inspector
- State Medicaid Fraud Units
- Medicare Administrative Contractors
- Various “Program Integrity” contractors
- Financial Investigations Units of various commercial payers
- Local police forces, which sometimes have investigational units that work with commercial payers
Given this enforcement environment, all providers and suppliers are well advised to create and implement a compliance policy which outlines general guidelines that should be followed by an organization and its employees if faced with an investigation.
General Guidelines Concerning Rights/Obligations during an Investigation
A successful government investigation policy outlines specific actions employees may, and should, take when encountering a government investigator, such as:
- Immediately reporting the receipt of a search warrant or subpoena to the compliance officer/legal department.
- Notifying the organization if the employee has received a request to be interviewed. It is important that the policy make clear that the employee is not required to make the notification of the interview request but that it is encouraged so that the organization and the employee’s legal rights are protected.
- Obtaining as much information as possible about the investigator and his/her agency. Employees should be instructed to ask to see the investigator’s badge or other credentials and to obtain the individual’s business card or write down his/her information such as their name, title, division, name of agency, and other relevant contact information.
- Informing employees that their cooperation is optional. The policy should make clear that the employee has a right to speak to the investigator; however, they are under no legal obligation to do so. Employees should also be informed that if they do decide to speak to an investigator they do not have to do so immediately and have the legal right to bring an attorney with them to the interview. An organization may also choose to assist the employee with obtaining a lawyer and may even pay for the lawyer. However, the employee should be informed that even if the organization pays for the lawyer, the lawyer technically represents the employee, not the organization.
- Refusing to give an investigator the organization’ s records unless there is a search warrant.
- Allowing a search if a search warrant is produced. The policy should clearly map out the steps an employee should follow when presented with a search warrant, including, for example, contacting the compliance officer immediately, not interfering with the investigator, and making a copy of the search warrant. Further, the organization should send home employees during the search, except anyone specifically designated to handle the responses to the search.
- Notifying the compliance officer immediately if presented with a subpoena. The policy should outline the difference between a search warrant and a subpoena, noting that customarily subpoenas have a written deadline for responses and an immediate response is generally not required.
- Informing employees that investigators cannot guarantee leniency or immunity. The policy should outline that investigators will sometimes make offers to potential witnesses but that investigators have no legal authority to do so and only a federal or state prosecutor can make a binding deal with a witness.
The government investigation policy should also clearly instruct employees to never obstruct investigators with a search warrant. While employees are not required to assist the investigator, employees may not physically block the agents, actively mislead them, delay them, or destroy any documentation. Obstructing the search can itself be a criminal offense. While employees have a right to request that the investigator stay within the scope of their search warrant, and if it is believed that the investigator has exceeded that scope, employees still have the responsibility to not interfere with the investigation.
The policy should include contact information of the organization’s compliance officer and legal counsel with specific instructions on alternative contacts if an immediate response by the compliance officer or legal counsel is not received.
Employee Contractor Rights in Government Investigations Guide
In addition to the compliance policy outlined above, it is a good idea for an organization to provide employees with a specific guide document which sets forth important information to assist with their understanding of their legal rights. This guide should outline the employee’s rights if they decline or decide to talk to investigators.
Truly effective and well implemented government compliance policies help healthcare entities retain confidential documentation and information that might otherwise be unnecessarily revealed. A well-established policy will also ensure that, if an investigation does occur, obstruction does not occur to increase the entity’s/individual’s potential liability. The increase in government investigations by such a large group of investigative bodies is only further proof that now is the time to make sure all healthcare organizations have a sound policy in place.
Adrienne Dresevic, Esq. is a Founding Shareholder of The Health Law Partners, P.C., a nationally recognized healthcare law firm with offices in Michigan and New York. Practicing in all areas of healthcare law, she devotes a substantial portion of her practice to providing clients with counsel and analysis regarding compliance, Stark Law, Anti-Kickback Statute, and compliance related issues. Ms. Dresevic serves on the American Bar Association Health Law Section’s Council, which serves as the voice of the national health law bar within the ABA. Ms. Dresevic also serves as the ABA Health Law Section’s Co-Chair of the Physicians Legal Issues Conference Committee, Vice Chair of the Programs Committee (Executive Leadership), and Vice Chair of the Sponsorship Committee. She is licensed to practice law in Michigan and New York, and can be contacted at email@example.com.
Clinton Mikel, Esq. graduated from the University of Michigan Law School. Practicing healthcare law, he concentrates in Stark, fraud/abuse, telehealth/telemedicine, compliance, and the corporate and financial aspects of healthcare practice.
The authors are members of The Health Law Partners, P.C. and may be reached at (248) 996-8510 or (212) 734-0128, or at www.thehlp.com.
Communication, preparation, compliance policies, and transparency is key. Nice work Adrienne and Clinton for bringing this insight to AHRA members!