Our experienced healthcare fraud internal investigation team is experienced in dealing with internal investigations. We recognize that internal investigations need to be handled swiftly and quietly in order to not disrupt employees. Whenever general counsel or independent counsel investigates and interviews employees, the employees should be advised that their statements may be considered privileged, but the company may reveal the statements at a later date, and that the company does not represent the employees’ interests. Moreover, if a conflict between the employee’s and the company’s interests is evident, the employee should be further advised to retain separate counsel. This advice should be given before the substance of the interview is revealed.
In Upjohn v. United States, 449 U.S. 383, 394-95 (1981), the Supreme Court adopted a test to determine if the information provided by an employee should be privileged. In its test, the court considers the following: 1) if the employee’s information was solicited for the purpose of providing legal advice to the corporation; 2) if the employee’s information was needed by counsel to formulate legal advice to the corporation; 3) if the information pertaining to matters within the employee’s job duties; 4) if the employee knew the interview was for the purpose of legal advice to the corporation; and 5) if the employee’s information was intended by the corporation to be confidential and, at least at the time of the interview, the corporation had no intention of waiving its privilege.[i]
If the factors above are not met, according to Upjohn, the information provided by the employee would not be considered confidential and could be disclosed through compulsory production. Warnings to employees must be consistent with Upjohn in order to meet the Supreme Court’s five-factor test and uphold the confidentiality of statements made to counsel.
After counsel has considered the necessity of Upjohn warnings and separate counsel, interviews of all employees who may provide relevant information should be conducted. Interviews of employees serve several functions: 1) to identify other documents and witnesses that are relevant to the investigation; 2) to collect information to advise the corporation on its culpability; 3) to preserve witness testimony for later use during government negotiations or court proceedings; 4) to allow management to fulfill its duty to conduct a thorough investigation; and 5) if possible, to make the first contact with witnesses prior to the conduct of government interviews.
Witness interviews should be conducted as early as possible and preferably before government investigators have had the ability to speak with the witnesses. Counsel will consider utilizing an investigator to be present for the interview in the event a witness is later cross-examined and impeachment testimony is necessary. However, investigators should not conduct most of the questions, as investigators often lack the appreciation for the legal nuance involved in complex health care investigations.
Counsel and the investigator may record the interviews, preserve all notes, and draft a report of each interview in a memorandum fashion clearly marked as “privileged.” If the employee witness provides particularly exculpatory information, counsel should consider obtaining an affidavit from the employee.
When determining who to interview, the investigator will begin with the individuals who have the closest proximity to the subject of the government investigation. This will ensure that other individuals who may possess knowledge can be quickly discovered and added to the interview plan. Counsel can always re-interview important witnesses after additional facts are gained from further interviews or to clear up conflicting testimony.
If you are aware that your entity is being investigated by the state or federal government, it is imperative that you 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).
Chapman Law Group is a multi-state health law firm devoted to representing health care professionals and health care entities during internal investigations as well as civil, criminal, and administrative proceedings. Chapman Law Group employs skilled healthcare attorneys and former state and federal prosecutors who are skilled at internal investigations.
[i] Upjohn v. United States, 449 U.S. 383, 394-95 (1981).
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