The need to understand and effectively work with vast amounts of information in digital format has now become an essential quality for any healthcare lawyer that advises clients responding to investigations. If counsel does not understand their clients’ technology and data, they should not be afraid of using an expert to work alongside them to help respond to the government. Chapman Law Group has the experience and knowledge to assist your health care corporation with a compliant production of digital information.
Having a real handle on the data in response to an investigation can be a powerful negotiating tool. Here are several strategies for using digital data to the client’s advantage:
Gathering, preserving, and producing Electronically Stored Information (ESI) and documents is one of the most important oversight tasks for counsel. Today, virtually all healthcare claims are electronic standard transactions, as required by HIPAA. Most claims’ supporting materials (i.e., CMNs, prescriptions, delivery tickets), other scanned and faxed documents, email, and other communications are now electronically stored. As a result, most discovery in health care fraud cases involves electronically stored information or ESI as defined by the Federal Rules of Civil Procedure. A prompt, well-coordinated and meticulous plan for preserving, gathering, and producing responsive ESI and documents is a major and critical part of representing the health care fraud client.
Although much of the actual production and preservation will be conducted by the client’s staff and, in particular, their IT and data departments, effective oversight by counsel is important for several reasons. In most cases, a team made up of operations, claims, IT, and any other recordkeeping staff should be assembled to respond, and the role of counsel to guide this team is pivotal. In addition to ESI, staff will need to identify and preserve any paper or hard copy records as well.
An important first step is to identify the resources available within the client’s own office or organization to collect, preserve, and produce the ESI. Also identify any commercial software or data vendors the client uses to process and submit claims, store data or medical records, or perform accounting functions, and determine their ability to preserve and produce the data needed. If resources are lacking within the organization to identify, collect, preserve, and produce records on a timely basis, it is essential to identify and engage outside data technicians, auditors, or others that can assist in the work so that it can be completed on a timely basis and without undue alarm and pressure on employees and staff.
There are a number of “e-discovery” vendors that offer record preservation and production services, and this should be explored with the client. Using an e-discovery vendor with experience in responding to government investigations can make the process more complete, accurate, and timely; they can help produce data in formats that conform to the government’s formatting requirements and, often, it is cost-effective in the long run. Of course, any such engagement should be through counsel to protect the privilege and approved by the client.
Counsel should immediately identify the type of investigation and obtain all requests and demands for ESI and documents. Often the demands can be daunting – it is not uncommon for a CID to demand extensive data on an array of matters in a very specific format. As described above, counsel will be instrumental in negotiating limitations to the scope of the request and the response time. Simultaneously, counsel and the organization must begin to take steps to preserve and prepare ESI and data for production. It is critical that preservation notices and steps be taken at the first sign of an investigatory demand for data. Doing so is not only required by law, but it also demonstrates to the government the client’s cooperation and good faith in responding to the investigation and allows counsel to begin gathering and analyzing the information the client will be required to turn over. Keep in mind, especially at the beginning of an investigation, “you don’t know what you don’t know.”
The single most important factor in gathering and preserving evidence is to pay careful attention to what is being asked. Simply put, requests and demands can be lengthy, overbroad, and even obtuse. To a layperson, especially a data or claims technician, the legal language may be intimidating or misunderstood. It is critical that all requests or demands be carefully read and summarized to clearly identify the scope of the information needed, including lending special attention to time periods, and that this information is effectively communicated to all staff, especially IT. Anyone supervising the preservation, gathering, or production of data and evidence should have easy and timely access to counsel for questions and guidance, preferably by phone or in person and not by email. Also, as counsel negotiates limitations on the scope or timing of the request or demand, that must be immediately communicated in clear terms as well.
The preservation activities and the notice will depend largely on the nature and scope of the investigation and the size and sophistication of the provider or organization. Obviously, the notice and preservation requirements for a small physician practice in response to a CMP will differ from that of a Medicare Part C plan or major health care system in responding to a qui tam action.