OIG guidance requires that health care entities institute sufficient controls to prevent fraud waste and abuse. This includes receiving reports of suspected health care fraud, investigating the veracity of those reports, and recommending appropriate corrective action.
Failure to conduct this process under the guise of the attorney-client privilege would make the internal investigation discoverable by federal regulators in response to a civil investigative demands, investigative subpoenas, or discovery in a False Claims Act case.
Therefore, all investigations should be conducted by an independent external investigator and should be covered by the attorney-client privilege.
In Upjohn Co. v. United States, 449 U.S. 383 (1981), the U.S. Supreme Court held that internal investigations, and the responses given by employees during internal investigations, are protected by privilege.
From there on out, it became customary to provide Upjohn warnings to employees, indicating that the investigation is governed by privilege, that the company holds the privilege, and that the company may choose to waive the privilege at its discretion.
Failure to provide an Upjohn warning could spell trouble in the event of a federal investigation, as it may result in the disclosure of confidential internal information.
If you are aware of an allegation of health care fraud at your corporation, it is vital that you launch internal investigation conducted by outside counsel. A thorough investigation that is properly protected by privilege will allow the health care entity to take corrective action swiftly, while still maintaining the attorney-client privilege.
If you are aware that your entity is actually being investigated by state or local authorities, you should contact outside counsel to conduct a thorough parallel investigation. Failure to do so will leave you powerless to defend the eventual government allegations.
In many cases, swift corrective action following an investigation will resolve disputes with federal regulators including Health and Human Services (HHS), the Drug Enforcement Administration (DEA), and the Department of Justice (DOJ).
We at Chapman Law Group have solid experience when it comes to internal investigations at health care practice, in addition to civil, criminal and administrative proceedings. Our compliance law and criminal law practice groups include a former Medicare attorney and an ex-Medicaid fraud prosecutor.
Before you decide to launch an internal investigation, contact us so we may work together to make sure your attorney-client privilege is preserved.
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