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PHYSICIAN COMPLIANCE WITH GOVERNMENT INVESTIGATIONS

By: Michael J. Schoppmann, Esq.

The multitude of government entities and/or agencies (at both a state and federal level) investigating, or holding the power to investigate, a physician has grown exponentially over the past decade. Ranging from the criminal investigations involving allegations of Medicare fraud to the new investigations to be conducted by the Office of Civil Rights (“OCR”) for potential violations of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and stretching to inquiries by the Occupational Safety and Health Administration (“OSHA”) regarding medical waste management, physicians face ever increasing investigations, new forms of investigators and ever changing, unique sets of powers.

How physicians respond, or do not respond, to government investigations may dictate not only the course of the investigation, but also the outcome of the potential adverse action and the adverse impact the government extols from the physician. Therefore, understanding who the investigators are, what they are charged to investigate, and what obligations (and/or rights) practitioners hold in dealing with such investigations is critical to protecting every physician, their practice, their livelihood and potentially. . .their liberty.

Law enforcement agencies may obtain your office records in one of two ways; by service of a subpoena or by execution of a search warrant. Each requires a different response. A search warrant usually permits an immediate search and seizure of specified records, computer files, computers, etc. and a physician can do little more than observe the search and challenge the seizure in court later, if necessary and/or appropriate. A subpoena however, is nothing more than an order requesting testimony and/or the production of records at a later date. A subpoena does not entitle the investigator to an immediate response or the immediate surrender of records. A subpoena should be evaluated carefully, by counsel, to make sure that it does not call for the production of privileged materials. Complying with such a subpoena, one that improperly seeks disclosure of privileged materials, may expose a physician to civil liability. Additionally, appearance pursuant to a subpoena before a New York State grand jury may act to confer immunity to the practitioner. Therefore, each practitioner and his or her attorney must carefully decide how to respond; however, there are certain fundamental strategies to be weighed.

”DON’T UNDER-REACT”

(i) Don’t Hide – Avoiding interaction with investigators, from any branch of government, only serves to delay the inevitable and potentially exposes the practitioner to additional charges of obstructing the investigation itself.

(ii) Don’t Refuse to Cooperate – Under most regulations, a practitioner has a duty to cooperate in an investigation conducted by a government authority. As an example, the Office of Professional Medical Conduct may discipline a practitioner simply for the failure to cooperate. In practical terms, refusing to cooperate may bring about an action where none lay previously wherein an investigation may actually be targeting another practitioner (or entity) and an overzealous desire to rush away from the requests of an investigator may serve to only bring about potential liabilities for the non-compliant practitioner not contemplated in the original investigation.

“DON’T OVER-REACT”

(i) Don’t Talk – Even if armed with the best of intentions, and a defense carved in legal perfection, no practitioner should (or is obligated to) speak with an investigator without the benefit of counsel. Admitting to every untoward act the practitioner has committed since grade school may be “good for one’s soul,” however, it serves no positive purpose toward ending the investigation. In fact, such acts may actually expose the practitioner to even greater liabilities.

(ii) Don’t be intimidated – Even an appropriately served subpoena does not require immediate action (such as turning over medical records upon demand) and it is most certainly not an order or legal mandate that the practitioner speak with an investigator.

(iii) Don’t Falsify Records – Not only is the falsification of medical records a criminal act, under both federal and state law, it can serve to compound the potential liabilities the practitioner faces from the investigation itself. Moreover, current technologies and investigative tools provide government investigators with unprecedented abilities to detect instances, and methods, of falsifying medical records.

The fact that a physician is being investigated does not portend an incontrovertible conclusion that the physician is guilty of wrongdoing or will be so adjudged at some point in the future. However, how the physician manages the investigation can have a profound, and potentially permanent, impact upon the eventual disposition of the inquiry.

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