Responding to Administrative Subpoenas

Healthcare Administrator Signing a Contract

What Healthcare Providers and Practices Need to Know About Production, Preservation, and Retention of Records

As a healthcare provider filing claims under and being reimbursed by Medicare, Medicaid, and/or private insurance, there is the possibility that you may be subject to some kind of governmental investigation. When this happens, you often will receive an administrative subpoena, which usually includes a demand for compulsory documents.

It is at this point that your best interest is to retain health care-based criminal defense counsel that is experienced in governmental investigations. These attorneys will assist with production and preservation, review the requested information, and advise on how to mitigate potential culpability.

As the administrative subpoena process begins, there are essential steps must be undertaken regardless of the type of document or materials request.

What is an Administrative Subpoena All About?

Regulatory authorities, such as the Center for Medicare and Medicaid Services (CMS) and the U.S. Department of Health and Human Services (HHS), and law enforcement authorities, including the DEA, DOJ, and FBI, have a vast number of compulsory production tools at their disposal. In the administrative context, regulators may utilize administrative subpoenas or audits to gather patient records and other material of evidentiary value.

Prior to responding to the administrative subpoena, counsel must first review the relevant request. This will give counsel vital information about the scope, target(s), subject matter and focus of the administrative investigation. In many cases, a review of the document may suggest that the entity receiving the document is not the target of the investigation, but rather a subject or even a witness of the investigation.

For instance, if a toxicology laboratory receives an administrative subpoena for its lab requisition forms for one particular provider, it is not likely to be an investigation into the laboratory, but an investigation of the provider instead. Alternatively, if the administrative subpoena issued to the laboratory requests requisition forms, lab results and the contract with the lab’s medical director, the lab is likely one of the targets of the investigation.

How Should I Preserve the Relevant Materials in an Administrative Subpoena?

Preservation of relevant material is the first step that must be taken by the target of any investigation. After reviewing the request, counsel will also understand what documents are sought and can prepare a plan for preserving, reviewing, and producing relevant material.

Counsel should construe a government request in the broadest sense possible when reviewing the request to preserve documents. This must occur when the target first learns that it is the target of an investigation through notification of an audit, a target letter or correspondence from a regulatory body.

Preservation usually comes in the form of a litigation hold and effective policies and procedures that direct the organization how to respond to a litigation hold. Some circuits have expanded this duty to require preservation when a “government inquiry is reasonably anticipated, threatened or pending.” This duty requires “reasonable” and “good-faith” actions to preserve potentially relevant information related to the anticipated litigation.

In order to properly preserve potentially relevant information, counsel should work with the target to identify all sources of information and any means by which data could be spoiled or destroyed, and properly communicate the need to preserve potentially relevant data for later review.

In terms of formatting, documents are to be indexed or Bates stamped, so as to clearly classify the kind of material is it, and this format needs to be implemented for all production that follows. Your counsel can work with the requesting party documents on how the documents should be saved, usually in a universally recognized way (i.e., .PDF, .JPG, .PST), though Microsoft Word documents are best saved as .PDF files, instead of .TXT or .DOC, so as to prevent any modification.

Once the relevant information is gathered and your counsel makes determinations and assessments for privilege considerations, relevant responsive documents must then be drafted and produced. Before production, counsel should thoroughly review this response, in addition to the privilege log and responsive documents, to make sure everything complies with the request and all is accessible.

How Can I Put a Policy and Procedure in Place for Data Retention/Destruction After an Administrative Subpoena?

Effective policies and procedures regarding data retention and destruction will be valuable in achieving this goal by providing a uniform method of document preservation and destruction that will allow counsel to temporarily modify to prevent document spoliation.

After counsel has had an opportunity to submit a preservation request to employees and preserve relevant data, counsel must then begin the process of gathering and reviewing responsive data to determine if the data is responsive to the request and non-privileged. This process must begin by gathering all potentially responsive information regardless of privilege.

A spreadsheet or database should be created so that counsel can track whether information has been reviewed and if an assessment has been made as to its responsiveness to the request and potential privilege. This will prove useful in creating a privilege log later.

For example, the spreadsheet could contain the following headings:

Figure X-X

Title:
Custodian:
Date Reviewed:
Responsive?
Privileged?
Date Produced:

As each document is reviewed, counsel should make a notation on the spreadsheet and sufficiently describe the basis for non-production due to a claim of privilege or that the document is non-responsive to the request. For email correspondence, the log should also contain the sender, recipient, and any carbon copy (cc) information.

Information regarding privilege should be sufficiently detailed in order to support future objections that the information is privileged. The log must be updated as additional documents are reviewed and the log must clearly indicate the date of production to the government and any objections.

If Your Practice is Served an Administrative Subpoena, Call the Chapman Law Group Healthcare Criminal Defense Lawyers

If you or your corporation is issued an administrative subpoena, or you are aware that your health care entity is being targeted for a governmental investigation, it is crucial that you retain outside counsel to begin a parallel internal investigation and properly respond to the administrative subpoena. Without experienced health care-based criminal lawyers there to preserve privileged material or assert a privilege, you could be left powerless to defend the eventual government allegations.

Chapman Law Group’s seasoned healthcare-based criminal defense attorneys have a wealth of experience in assisting corporate clients facing federal and state governmental investigations. Among our lawyers are health care litigators, former prosecutors, and investigators who can prevent or mitigate potential culpability.

We handle multistate federal criminal matters investigated by the Department of Justice; state felony matters; and, where criminal sanctions are possible, investigations commenced by the HHS, FBI, DEA, FDA, and DOJ.

We at Chapman Law Group work with healthcare providers across the U.S. on healthcare-based criminal matters and governmental investigations, and we have four national offices:

Contact us today to learn more about how our healthcare-based criminal law practice can help your healthcare entity with governmental investigations. 

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