What To Do When The Feds Come Knocking

You are about to open your door one evening when you are approached by a man who flashes a badge and says “ I am with the Federal Bureau of Investigation, and I want to talk to you about your work for Mammoth Hospital.” What do you do?

Recent developments in regulatory enforcement have made in painfully obvious that any person who is involved in providing health care services or advising health care providers regarding regulatory issues is exposed to potential involvement in civil or criminal proceedings. This involvement can be either as a witness, a subject, or as a target of an investigation. Every entity that participates in the health industry, therefore, should develop policies and procedures that prepare the entity for inevitable regulatory intrusion.

Development of policies and procedures for response to government audits and investigations is a complex matter, and one system may not suffice for all entities. The following describes some general policies and procedures that could help an entity respond to regulatory activities and service of legal process.

First, all entities may become involved in litigation of all kinds. Likewise, because the health industry is heavily regulated, providers are subject to frequent and routine government reviews. As a result, a health care provider can expect to receive many summonses, subpoenas, and requests for production of documents. Also, employees may sometimes find themselves subpoenaed to testify in hearings and trials.

  1. Litigation

Because a provider may be legally responsible to meet a deadline set by a pleading or may be subject to administrative sanctions, including exclusion from government reimbursement programs, for failure to timely respond to demands for document production, it is essential that the entity develop a procedure for early involvement of legal counsel. As a part of the entity’s Corporate Compliance Plan, each employee or other agent should receive adequate training to insure that legal process, or any inquiry from a regulatory agency, is communicated to legal counsel. This should include telephone and facsimile numbers that can receive communications at all times.

  1. Subpoenas

Subpoenas can come from several sources: the Department of Health and Human Services, Office of the Inspector General; a federal grand jury; or, private litigants. Regardless of the source,  Subpoenas are merely documents that request the production of documents or the presence of a person at a deposition and do not require an immediate response. If served with a subpoena, employees and agents should be act as follows:

         DO NOT turn over documents called for in a subpoena;

         DO NOT discuss the case with the individual who served you with the subpoena; and,

         DO NOT discuss the subpoena with anyone other than the entity’s Corporate Compliance Officer and legal counsel.

  1. Search Warrants

Unlike subpoenas, search warrants can be executed immediately by the agents who present the warrant to the entity. It is likely that several agents will descend on the entity at the same time and actually carry away files, records, and sometimes even computer systems without advance warning.

If someone representing a government agency attempts to execute a search warrant, the following steps should be taken:

  • Do nothing to interfere with the agents;
  • Demand a copy of the search warrant and the business card (or name) of the agent in charge;
  • Be sure the office manager or highest ranking employee on premises is informed of the situation;

Call an attorney approved by the entity, and follow the attorney’s instructions carefully. If the entity has a Corporate Compliance Plan, a report should also be made to the Corporate Compliance Officer.

The employees or agents then need to be present while the search is conducted. Employees and agents should take steps to assure that –

  • Only those items referred to in the search warrant are taken;
  • Company documents are not photocopied on the premises; and,
  • A correct and complete inventory of all items taken is given to you before the agents leave the premises.

Although the agents have the right to be on the premises to execute a warrant does not mean that employees must submit to interviews. Employees are not required to explain entity operations, bookkeeping, records, or what any document means. Employees should cooperate in locating those items called for in the search warrant, but no more. If an agent makes requests or demands that are inconsistent with these instructions, employees should be instructed to seek the advice of legal counsel.

  1. Contact With Government Agents and Investigators

Mere contacts with government agents and investigators, such as the situation described in the first sentence, are not usually accompanied by any written legal process. Therefore, employees should be prepared to anticipate the possibility of being approached away from the work place.

Although an employer cannot forbid or prohibit an employee or other agent from talking to a government investigator, employees and other agents should be guided by the following:

It is quite common for investigators to arrive unannounced at someone’s home and then try to make the person feel guilty if they don’t consent to an interview. Occasionally, investigators will try to suggest that you must speak with them “or else.” No one is required to submit to questioning by government investigators or employees. Beware of any investigator who says you have nothing to worry about or suggests that by talking to him things will go easier for you. Investigators do not have any authority to promise anything to a witness. Only a government attorney working with your attorney can make promises binding on the government.

If someone claiming to represent the government contacts you at work or at your home, follow these simple steps:

  • First, ask for identification and a business card.
  • Second, determine precisely why they wish to speak with you.
  • Third, tell them you wish to make an appointment for a date and time in the future. The investigator will probably attempt to talk you out of delaying the interview, but you have that right. The common ploy is to suggest that honest people have nothing to hide and there is no reason for innocent people to consult an attorney. The simple response to such a claim is that honorable government investigators have nothing to fear from a simple delay of an interview.

After the investigator leaves, promptly contact the Corporate Compliance Officer or one of your attorneys.

Remember, investigations by the government are commonplace and seldom result in criminal prosecutions. The mere fact that an inquiry is made does not in any way suggest that any entity has acted negligently or improperly. The government has a right and obligation to conduct inquiries, just as you have the right to demand that it be done in an orderly and proper fashion. Each provider or consultant to the health industry is well advised to assess its regulatory risk and develop a Corporate Compliance Plan that includes procedures for responding to government audits and investigations.

Discounting Can Cause Compliance Issues for Anesthesia Group

Anesthesiologists know professional courtesy, co-payment waivers and discounts for cash payments could cause compliance issues. You need to know the nuances to three situations; Professional Courtesy, Waiver of Co-pays & Cash Pre-payment versus Insurance, to avoid compliance issues. 

1. Professional courtesy. It is legal to provide courtesy to physicians in the community, other healthcare providers, and their staff, generally speaking. However, it becomes illegal is when courtesy targets physicians or people who are in a position to refer federally-insured patients to the practice. This is a Stark violation. Suggestion: Offer the courtesy discount to all physicians on the medical staff and the CRNAs & AAs that practice at your contracted facilities.

2. Waiving co-pays or accepting “insurance only” as payment. Patient co-pay waivers are generally illegal and certain states have deemed “insurance only” billing as fraud. There is however, one limited exception to the prohibition of co-pay waivers — a waiver based on demonstrated financial hardship. Practices must determine a process in terms of what patients need to provide to qualify for this exemption. Suggestion: Follow the hospitals hardship policy, if the hospital approves the patient discount the same level. You can discount the patients balance after they have received a single statement after insurance has made payment without violating any contacts.

3. Discounts for cash payment. The practice of bypassing insurance is legal, but anesthesiologists need to check whether undercutting their own negotiated rates violates any of their health plan contracts. Suggestion: Only allow cash pre-payment prior to surgery.