Government scrutiny of health care organizations is at an all-time high. This scrutiny — whether by FBI agents and federal prosecutors, agents from the Office of the Inspector General, or state agents investigating Medicaid or general insurance fraud — is increasingly directed at medical groups. It now goes far beyond a search for purposeful deception by greedy cheaters.
Virtually every health care provider violates federal and state reimbursement rules from time to time. These mistakes are usually inadvertent. However, repeated patterns of error, sloppy oversight of billing procedures, or utilization of coding patterns that vary from so-called "norms" can all lead to trouble.
Don't forget that many providers' names come up in the course of another investigation or because some whistle-blower has told investigators — rightly or wrongly — that the provider is engaging in billing errors and/or fraud.
Everything mentioned here can — and probably should — be part of a written policy distributed to your personnel as part of your ongoing compliance efforts. There is no need to wait for investigators to invade your premises before communicating this information.
This policy should address written requests for documents, as well as actual visits, physical inspections, interviews, and search warrants. Your employees must understand what is expected of them.
Among these expectations is the rule to not speak to the press about the investigation, 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, when deciding how aggressively to pursue an investigation, pays close attention to bad press directed toward the health care organization.
To the extent possible, consider sending all nonessential personnel home (or at least off the premises) until the investigators have completed their search and gone. This will not only reduce the danger of inappropriate conversation, but will also lower the stress level.
During the search, try to obtain permission to copy all documents in question. The agents may resist this request, and certainly will refuse if it is not easy and quick to make copies. At a minimum, obtain permission to copy key items. These include those files or papers that you need for day-to-day operations.
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 search.
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.
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 evidence seized. 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 also need to draw the government's attention to exonerating or exculpatory information in certain documents. Organized detailed 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 that includes a copy of your receipt. State that the agents were unwilling to sign it at the time of the search.
This will help demonstrate that you have kept a detailed inventory. It's is an imperfect solution, however, and you should try to obtain both sides' signature on the "receipt" whenever possible.
Know your rights
Often, government agents will try to take documents that are outside the scope of a search warrant. You (or, hopefully, your attorney if he or she has arrived) should point out that such seizure is inappropriate.
The agents will frequently comply with these requests, as long as they are accurate. If they persist in their search, however, do not attempt to prevent the seizure. Just make sure your notes clearly reflect the details for later appeal.
Also, persons executing the search warrant will often try to take privileged documents. In this case, advise them that the material is subject to attorney-client privilege.
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 commingle 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.
Throughout the entire process, it is essential that you help your organization by remembering the keys to surviving any type of government scrutiny:
Behave in a businesslike manner.
Later in the process, the shut-up principle will be replaced by the prepare-carefully,-explain-well,-and-offer-mitigating-evidence principle.
At the time of the search, it is essential that you and employees remember that search warrants and document subpoenas allow agents to look for evidence. They do not require you to confess, explain, or annotate. Therefore, don't, don't, and don't.
Neil Caesar is president of The Health Law Center (Neil B. Caesar Law Associates), a national health law consulting practice in Greenville, S.C.