When it comes to healthcare compliance, employees at your healthcare practice, or any other healthcare-based business you run, have an obligation to report anything that could put that practice in legal jeopardy. Once this information is relayed to the right channels — whether an HR department, a supervisor, a practice’s compliance officer, or perhaps yourself — it’s now up to you to look into it. You need to conduct an internal investigation.
Why? Because now you have knowledge of something happening within your practice that is, potentially, illegal. And if any government entity — such as the U.S. Department of Justice (“DOJ”), the Office of Inspector General for the U.S. Department of Health and Human Services (“HHS-OIG”), the Drug Enforcement Administration (“DEA”) or the Health Care Fraud Prevention and Enforcement Action Team (“HEAT”) — comes knocking with orders for an investigation before you’ve had a chance to look into the issue yourself, you could be at serious risk.
How serious? Try hundreds of thousands of dollars in civil penalties. Exclusion from Medicare and Medicaid. Loss of license. Even criminal charges.
If there’s credible reason and enough reliable information to show that one of your employees, independent contractors, business partners, or vendors is engaging in illegal conduct or improper acts, you should start an internal investigation immediately. The longer you put off an internal investigation, the more civil and criminal penalties you could face for willfully letting things go on.
Further, if you are aware that your practice is already 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 the HHS-OIG, DEA, DOJ, HEAT, or other agencies.
First, your practice needs outside legal counsel who specializes in healthcare compliance, white-collar criminal defense, and regulatory/governmental matters. A lawyer who practices in each of these three sectors will have deep understanding of healthcare-specific legal statutes (Stark Laws, Anti-Kickback, False Claims Act), and will:
Your practice then needs to gather and review all documents related to the issue being investigated, and track where they came from. These include medical records, billing practices, claims filed with Medicare, emails, and, when necessary, witnesses’ personnel files.
If you have a written policy regarding internal investigations, review it to make sure the guidelines and parameters are clearly stated, and that it sets forth what is expected and required during the process. Make sure your employees are aware of it.
At this point, any employee who may provide relevant information to the matter at hand will be called into a meeting space for an investigative interview. This will serve several functions:
When determining who to interview, the investigator will begin with the individuals who have the closest proximity to the subject of the misconduct. 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.
Your investigative counsel (who may be your legal counsel or an outside counsel) will tell each employee who he/she represents, the purpose of the investigation, and alert your employee that he/she:
Your counsel will make legal assessments as to whether each person is a witness, subject, or target of the investigation:
Your employee witnesses must be aware of an attorney/client privilege called the Upjohn warning, or the “corporate Miranda warning.” This stems from Upjohn Co. v. United States, 449 U.S. 383 (1981), a U.S. Supreme Court ruling stating that internal investigations, and the responses given by employees during internal investigations, are protected by privilege.
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, that employee may retain his/her own counsel, and that counsel may be present at the interview. This advice should be given before the substance of the interview is revealed.
But when someone is determined to be the target of the investigation, there are several questions you and your counsel will need to answer prior to his/her interview:
These questions can only be answered by your attorney, and the answers will vary depending on the circumstances surrounding the investigation.
Once the investigation is complete, you and/or your compliance officer, along with your counsel, need to discuss what to do based on the outcome. Should you self-disclose everything to the government? Or will doing so lead to self-incrimination?
These are serious questions, and the best advice for how to handle them should come from experienced healthcare compliance, healthcare fraud, and and healthcare-based federal criminal defense attorneys — the ones from Chapman Law Group
Our national healthcare law firm is devoted to representing healthcare professionals and entities during internal investigations as well as in civil, criminal, and administrative proceedings. Our attorneys include former state and federal healthcare fraud prosecutors who know what government entities seek in their fraud investigations and how they do it.
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