Articles on Compliance Strategies

Featured Health Business Daily Story June 19, 2008

Practical Steps for Dealing With Surprise Visits From Government Agents

Reprinted from REPORT ON MEDICARE COMPLIANCE, the nation's leading source of news and strategic information on false claims, overpayments, compliance programs, billing errors and other Medicare compliance issues.

By Nina Youngstrom, managing editor, (nyoungstrom@aispub.com)

Ohio State University Medical Center wanted employees to have more than a general sense of how to respond if a government investigator shows up at their office or home. Employees should be armed with an action plan to guide them if they wind up staring into the eyes of a government agent who has come to ask questions or has a subpoena or search warrant authorizing document seizure, the medical center felt.

So Compliance Director Julie Chicoine developed a hands-on policy for responding to government fraud-and-abuse investigations.

"We are striving to create a message that this is an area where things can get out of control quickly, and you have to be proactive and make sure employees and managers understand what is going on," says Chicoine, a lawyer, nurse and certified coder.

She drew on two different Department of Justice (DOJ) documents to help guide development of the policy. They are:

(1) The Federal Prosecution of Business Organizations (known as the McNulty memo), and

(2) The United States Attorneys' Manual.

Both documents are on the DOJ Web site. They are helpful because they give providers insight into federal fraud investigations and the factors that influence U.S. attorneys' decisions to pursue civil and criminal cases, she says.

"I thought about a policy for a long time because when I was an attorney in private practice, I had situations [with clients] where a U.S. attorney [for example] had shown up at their door at 5 p.m. on a Friday. It can be very unsettling," she says. "You have to gather your wits and have a game plan. Without a game plan, chaos can ensue, and sometimes that can mean not getting all the information [to the government] that can be favorable to you."

Chicoine also felt a policy was necessary after reviewing the April 15 Open Letter to Health Care Providers that revised the self-disclosure protocol and re-reading the SDP itself. She was reminded that the HHS Office of Inspector General (OIG) doesn't guarantee that providers who reveal misconduct through the SDP won't be referred to DOJ. This language, she says, is a big reason why institutions should have proactive policies in place to minimize risk when OIG, DOJ or other government agents come knocking. "Corporations still have rights and privileges" and should protect them, she maintains.

Chicoine will be disseminating her policy throughout the organization, including leadership and middle-management channels. "It was developed in part so employees have a checklist they can fish out of their drawers if a government agent shows up," she says.

Here are additional issues to think about when a government official shows up unexpectedly:

• Identify what agency or agencies the government officials are from. Is it OIG, DOJ, the state Medicaid fraud control unit, etc.? Get copies of their cards, and verify their credentials.
• Call your attorney and report the presence of the agents and the names of their agencies so the attorney can assess the scope of the problem, Chicoine says. Ask the agents for a primary point of contact so you don't have to duplicate medical and other records for each agency, which is time-consuming and expensive.
• Employees shouldn't take a confrontational approach with government agents who are just trying to do their jobs.
• "If things unravel quickly and agents are very zealous, [employees should not] attempt to interrupt or interfere with their investigation. It will create problems for you individually and only escalate things," Chicoine says.
• Cooperation and collaboration are often essential to resolving whatever issue brought the agents to your organization and minimizing the financial risk to your organization. For example, you may be able to help make the investigative process more efficient for both sides by explaining what records are relevant and dissuading officials from seizing records that aren't. Always document everything taken by the government, Chicoine adds.
• Don't assume that your organization will be accused of a crime just because the feds serve a search warrant, she says. The warrant gives them the right to seize documents, "but it doesn't mean a crime was committed." She says you can ask the agents to wait for your attorney, and they may be willing to do it. Chicoine advises copying the search warrant. "It might help you determine which documents will be most helpful to resolve the issues, what your defenses are, whether there is a whistle-blower and what the government's next steps will be." Also, if the government wants to enter an area that is beyond the scope of the search warrant, you can say no.
• If the records being seized are electronic, get the IT person to provide them in CD or other formats. "Otherwise, [the agents] will cart off the whole computer," she says.
  

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