GOVERNMENT INVESTIGATIONS OF MEDICAL PROVIDERS

In recent times, there has been a noticeable surge in investigations and prosecutions carried out by state and federal agencies targeting healthcare providers suspected of engaging in fraud, waste, and abuse. The arrival of a representative from a state or federal government at a healthcare facility, often unannounced, typically heralds unwelcome news. Whether it’s an FBI agent, a Medicare/Medicaid surveyor, or a representative from a state agency, the visit is usually unexpected. During regular business hours or off-hours with minimal staff supervision, these agents or surveyors may attempt to access more information than is legally allowed. It is imperative for every healthcare organization to establish a protocol for handling encounters with government agents during investigations, including immediate contact with an attorney for guidance and potential intervention.

While employees should maintain a polite demeanor with agents/surveyors, various competing interests must be considered, such as patients’ privacy rights, employee rights, statutory protections of peer review materials, and other legal safeguards like physician-patient privilege, attorney-client privilege, and constitutional rights. While cooperation with law enforcement agents and investigators is encouraged, this cooperation should not extend beyond the authorized scope defined by the agents/surveyors.

Upon discovering an investigation, healthcare facilities are often unaware of the triggering factors, which could range from a whistleblower lawsuit to a government initiative targeting specific issues, patterns or irregularities identified in an audit, follow-up on survey findings, or a complaint. Investigations may take on a civil, criminal, or dual nature, necessitating immediate legal counsel to protect facility rights. Proper handling of an investigation during the initial government contact is crucial, especially in cases involving potential criminal charges. Employees must be well-instructed on whom to contact in the event of a government investigator’s visit, with the facility’s attorney’s contact information readily available and clarity on permissible responses.

Facilities and their employees are legally obligated to cooperate with government investigators. State laws and federal rules empower government officials with enforcement tools when investigating healthcare providers. For example, Medicare regulations grant the Office of the Inspector General (OIG) the authority to exclude a provider from the Medicare program if access is denied “upon reasonable request.” It’s crucial to note that government investigators cannot prevent personnel from contacting their attorneys. Cooperation with subpoenas and search warrants is mandatory, and noncompliance may lead to sanctions such as fines or imprisonment. Therefore, having a well-thought-out plan to respond to investigations is essential and should be an integral part of the facility’s overall compliance strategy. A meticulously crafted plan outlines how a facility should respond to any government or regulatory agency during an audit, survey, inspection (announced or unannounced), receipt of a subpoena, or execution of a search warrant.

Attorneys at MDRXLaw routinely manage emergency situations resulting from visits by government investigators, adeptly handling responses, coordinating efforts, and representing providers involved in governmental investigations.