Recently, state and federal agencies have dramatically increased their investigations and prosecutions of healthcare providers involved in, or suspected of, fraud, waste and abuse. When a person representing a state or federal government shows up unannounced at a health care facility’s door, it is generally not good news. Whether the visitor represents the federal government (for example, an FBI agent or a Medicare/Medicaid surveyor), or is from a state agency, he or she is usually unexpected. Regardless of whether the visit occurs during regular business hours or during off-hours when there is minimal staff supervision, the agent or surveyor might try to gain access to more information than the government is legally entitled to. It is critical that every healthcare organization have a protocol in place for addressing situations involving encounters with government agents conducting investigations. This protocol should include contacting an attorney immediately for further guidance and possible intervention.
Although employees should be encouraged to be courteous and polite with agents/surveyors, there are competing interests that must be recognized, including patients’ rights to privacy, rights of employees, statutory protections of peer review materials, and other legal protections (such as the physician-patient privilege, the attorney-client privilege, and constitutional rights). And although employees should respect law enforcement agents and investigators and cooperate with their requests, cooperation should not exceed the scope of authorization that the agents/surveyors have.
When a health care facility becomes aware that it is being investigated, it often is unaware of what has triggered the investigation. The reason could be a “whistleblower” lawsuit, a government initiative focusing on specific issues, a pattern or irregularity picked up on an audit, follow-up on survey findings, or a complaint. The basis for inquiries may be civil, criminal, or both. Because presumptions and rules that exist in the criminal context are often different from those in civil matters, facilities must immediately obtain competent legal counsel to protect their rights. Proper handling of an investigation at the time of initial contact by the government is extremely important, especially when the potential for criminal charges exists. Each employee must be instructed whom to contact in the event of a government investigator's visit, must have the facility's attorney's contact information available, and what questions he or she may answer.
Facilities and their employees need to understand that they have a legal duty to cooperate with government investigators. State laws and federal rules provide government officials with powerful enforcement tools when investigating health care providers. For example, under existing Medicare regulations, the Office of the Inspector General (OIG) has the authority to exclude a provider from the Medicare program if it fails to grant “immediate access upon reasonable request” to government officials. However, government investigators may not prevent personnel from contacting their attorneys. Also, cooperation with subpoenas and search warrants is mandatory, and noncompliance may result in sanctions such as fines or imprisonment. Thus, a plan to respond to investigations is crucial and should be part of the facility's overall compliance plan. A well-crafted plan will outline how a facility should respond to any government or regulatory agency in the event of an audit, survey, inspection (whether announced or unannounced), receipt of a subpoena, or execution of a search warrant.
We routinely handle emergency situations occasioned by visits by government investigators, handle response, coordination and representation of providers involved in a governmental investigation.