EDITOR’S NOTE: This is the first in a multi-part series about preparing for auditor investigations
It’s 7 p.m. on a Thursday night. A coder is playing with her kids when there is a knock on the door. She looks outside and sees a black Crown Victoria in the driveway and two well-dressed fellows with short hair at her door. They are with the OIG (the U.S. Department of Health and Human Service’s Office of Inspector General, the investigative arm for Medicare) and want to ask a few questions about her job.
If you think this can’t happen to you, you’re wrong. Odds are that more than one recipient of this e-newsletter will experience such a visit during the next year. Because investigations are so common, you should make sure all of your colleagues are prepared so they know how to react. This is the first piece in a series of articles addressing preparation for audits and investigations.
Some investigations begin with an administrative subpoena for documents. However, in many cases the first indication of an investigation is agents appearing at the home of one or more employees (or ex-employees). The agents prefer to conduct the visits here for the same reason that a lion hunts at the rear of the pack; an employee at home is isolated and less able to seek help from a friend. Because employees will face the agents alone and with no advance warning, you need to prepare them to handle the situation. These visits put tremendous pressure on employees, who may worry (usually needlessly) about their personal liability or about losing their jobs. In fact, part of the preparation is explaining to employees that in the event of an investigation, employers will provide legal assistance for employees.
Handling Unexpected Visits
It is essential that everyone in your organization understand how to handle these unexpected visits, because although investigations often are completed with no penalties imposed, the mere investigation itself is a major burden. A staff member’s panicked response to agents visiting his or her home can prolong an investigation even if no laws have been violated.
With that in mind, again, it’s critical that everyone in the organization be trained on how to handle contact from the government. Depending on the nature of the investigation, agents may contact administrators, medical professionals, billing staff or receptionists. Since you cannot anticipate who will be contacted, you need to make sure that all staff receive instructions on how to deal with investigators.
You may worry that raising the specter of a potential investigation will cause undue fear or suggest that the organization is doing something wrong. But if the topic is discussed in a light and casual fashion, it doesn’t have to be scary—and it’s much less scary than having an agent visit your home when you’re not prepared for the visit.
The training should cover the following topics:
The basics of OIG investigations.
Inform the staff that the odds of an OIG visit are poor, but that such visits are now the norm in the healthcare industry, so it’s important to be prepared for the possibility. It is good to emphasize that many of these investigations end without any penalties; the fact that the government is investigating does not mean that anyone has done something wrong or that anyone will be in trouble.
As you well know, the laws governing medical practices are complex. The Stark Law, an anti-kickback statute, and a myriad of billing rules can tend to puzzle you, government agents and potential whistleblowers. Because the rules are so complex, some investigations are sparked when someone involved misunderstands a rule. However, when an investigation starts, you never know whether the government is mistaken, or you are. Until you know, it is best to prepare for the worst but hope for the best. It is also best to stay quiet.
They may not be who they say they are.
I have come across three situations in which someone claimed to be a government agent, but wasn’t. If someone asserts that he or she is a government agent, ask for identification. Feel free to call the relevant agency and confirm that the person is an agent. (If you are doing that, be sure you find the number in a phone directory; don’t just call a number given to you by the agent. If the person is really an impostor, they likely will give you a false number.)
They have ways of making you talk.
Agents don’t use bright lights or rubber hoses. Instead, they are very skilled at persuasion. In some cases, agents use fear to encourage cooperation. They might appeal to the employee’s sense of civic duty, arguing that the employee should help root out any wrongdoing. They might appeal to self-interest, arguing that unless the employee agrees to an interview, he or she will face prosecution. Agents typically will try to drive a wedge between the organization and the employee by telling employees that the organization will try to blame them for the problem – so they might as well “tell the truth” by turning on the organization first.
In other situations, agents will minimize the situation; for example, they may suggest that the visit is just routine, or not a big deal. These kinds of statements invariably are at least white lies; if it wasn’t a big deal, the agents wouldn’t be taking time out of their evening to conduct the visit. If your staff members have been trained to anticipate the arguments the agents will use and understand why they are using them, it is less likely that their arguments will be effective. Do some role-playing to help staff practice how to respond to potentially intimidating interview techniques.
How an interview can go wrong.
Underscore the consequences of talking with an agent during an unexpected visit by talking about things that can go wrong in an interview with government agents.
First, a minor misstatement of the facts can cause major problems for both the employee and the practice, even if it is inadvertent. Such an error may cause an agent to doubt the credibility of every other statement, greatly prolonging the investigation. In some cases, the agent may accuse an employee of making a false statement, and that is a crime.
Second, it is common for an agent to misunderstand something an employee might think is clear. For example, in one investigation an employee was explaining how physician assistants examined a patient, but the bill was submitted under the supervision physician’s number. The employee thought nothing of it; it was typical of incident-to billing. The agent, however, interpreted this as a suggestion that the physician was inappropriately billing for work she didn’t do.
Third, either the employee or the agent may have a poor understanding of the law. In one such situation of which we are aware, an agent mischaracterized the law, claiming that perfectly legal activities were illegal. The employee in this case, naively trusting that a government agent’s characterization of the law would be correct, concluded that he had broken the law. He then “confessed” to activities that were perfectly legal. However, the way the agent worded the “confession” made it sound as if the employee knowingly had broken a law. It can be very, very difficult to reverse the impact of this type of scenario, even if you have done nothing wrong.
The need for legal counsel.
For all of the reasons noted above, it is prudent for any staff member to seek legal advice before engaging in any interview with a government agent. This message should be clear: Once the OIG shows up, contact legal counsel. These agents are very good at implying that if you exercise your right to remain silent or to consult with legal counsel, you are admitting that you have done something wrong. There is a reason that government agents don’t want people to have legal representation: Individuals with legal representation are much less likely to wind up getting into trouble. Nearly everyone instinctively believes that declining to talk to an agent will cause the investigation to drag on and become a big deal, and that talking to the agent will help prove that there were no problems. That instinct is understandable—but wrong.
Make sure employees understand that unless the agent produces a search warrant, the government cannot make you do anything before you contact your legal counsel. On most visits, OIG agents will not have a subpoena or any other written document; they simply will ask you to talk voluntarily. Even if the agent does have a document, such as a civil investigative demand or a grand jury subpoena, it does not require you to do anything before you have time to contact legal counsel. In fact, while the OIG does have the right to “immediate access” to records, the law defines “immediate access” as within 24 hours.
In the unlikely event that an agent has a search warrant, he or she is entitled to take documents. Otherwise, it is entirely permissible to send the agent away. Before doing so, however, be sure to get the agent’s business card. You will want to know who is conducting the investigation.
An emergency response plan.
If one of your employees is contacted, there is a very real possibility that other employees are being contacted around the same time. Make sure employees know who to call if they are contacted. Because there may be other visits set to occur at or around the same time, the call should be made within minutes, rather than hours. Then, make certain that your contact person has a plan for reaching your legal counsel and other employees on very short notice. Employees should know that the organization will provide a lawyer at no cost to them.
Also make sure your employees have a number of contact options if one or more people are unavailable. Everyone should understand that a visit from an OIG agent merits an emergent response, even if polite or shaken employees are reluctant to bother a colleague at home.
Informing the employer.
It is particularly important that staff members understand that it is permissible for them to notify their organization if they are contacted by an agent. Some agents will close an interview by asking the subject to keep the visit confidential. The agent may say something like “It will make it more difficult for me to conduct my investigation if people learn of it.” That implies that it might amount to obstruction of justice to disclose the contact. It isn’t, though; it is perfectly legal for someone to reveal to an employer that he or she has been contacted by the government. If employees don’t know this, however, they may be scared to tell you. As a result, you may not learn of an investigation for weeks or even months.
I recently was aware of a physician who received a subpoena stating that “The United States Attorney requests that you do not disclose the existence of this subpoena. Any such disclosure would impede the investigation being conducted and thereby interfere with the enforcement of the law.” There is a good argument that this text is unethical; it is improper for the government to suggest that a person is legally required to keep a contact secret. Unfortunately, even if employees have been well-trained, such language may cause them to believe that it is improper to notify anyone about a subpoena. I would recommend using this language as an example, and making certain employees understand that it is always permissible for them to contact the company’s legal counsel if they are contacted by any government agent.
A final word of advice: revisit this topic frequently. Many organizations train staff on how to handle contact with a government agent once, but then don’t repeat the training for years. In addition to the need to train new employees regarding these procedures, keep in mind that the pressure of an actual investigative visit can make it very hard for employees to follow the guidance, even when the training is fresh. If the training occurred many months before an OIG agent’s visit, it is quite possible that employees won’t recall all the points that were covered.
Many complex factors go into determining how best to respond to an investigation, including the nature of the investigation (civil or criminal), the relative culpability (or lack thereof) of the client, and the nature and quality of the evidence. The initial contact is often critical. When clients undertake the initial communications directly with the OIG without adequate preparation or understanding of the legal issues, the results can be disastrous. An experienced advisor should guide the client through the process, including development of an appropriate communication strategy, analysis of the evidence, determination of how to structure relations with employees and other relevant parties in the investigation, and whether to pursue early negotiations or articulate grounds for the government to decline prosecution.
There is no way that a surprise government visit can be viewed as a good thing, but with careful preparation, you can minimize its impact.
About the Author
David Glaser is a shareholder in Fredrikson & Byron's Health Law Group and helped establish its Health Care Fraud & Compliance Group. David helps healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes.
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