EDITOR’S NOTE: This is final installment in a two-part series by Mr. Glaser.
It’s Thursday night and your coder hears a knock on the door. There is a Crown Victoria in the driveway and a nondescript individual with short hair is at the door.
What should the coder do?
Even a well-prepared person might feel a sense of panic when a person with a gun and a badge asks to speak with them, but without preparation, a good result is unlikely. Here are some basic principles all healthcare employees should know about responding to an inquiry from an agent:
- The investigator has the right to contact any employee unless the investigator knows that the employee is represented by a lawyer.
- Individuals have the right to choose whether to speak with the government investigator. Employees have every right either to agree or to refuse to speak with the investigator.
- Regardless of the decision, anyone contacted by a government investigator can and should notify their organization’s compliance officer.
- The government investigator does not have the right to insist upon an interview right then and there, and it is improper for him or her to pressure anyone in an attempt to obtain an interview. Any such pressure should be ignored. Deciding whether to submit to an interview is an entirely voluntary matter on your part. If you feel that you are being improperly pressured, contact your compliance officer with the details. Note that some licensing boards require licensed professionals to cooperate with an investigation. However, you have the time to consult with legal counsel before agreeing to any interview. In most cases, your organization will both arrange and pay for legal counsel to assist.
- If you decide to refuse an interview, you should politely but firmly decline the investigator’s request. You should also ask for the investigator’s business card.
- Since you are not required to submit to an interview, if you decide that you are willing to submit to one, you have the right to insist upon certain preconditions. For example, you may dictate that the interview be conducted only in the presence of legal counsel. You also may choose a time and location that is convenient.
- Employees often ask what they should do in this scenario. They may wonder what is in their best interests and what is best for their organization. The answer should be determined on a case-by-case basis with legal counsel. If you are willing to be interviewed, it is highly advisable to have legal counsel present.
- Under all circumstances, remember that you must tell the truth to government agents. Failure to do is usually in and of itself a violation of the law.
- DO NOT DESTROY ANY DOCUMENTS OR ATTEMPT TO HIDE EVIDENCE. Destroying evidence is a crime. While you may believe that you are helping your organization or protecting yourself, it will cause considerable damage to the reputation of everyone involved.
On Oct. 29, RAC University will be offering a webinar focusing on both how you can use your compliance efforts to prepare for an investigation and what your employees need to know when they are contacted by a government agent. You can register for the upcoming webinar online here.
In addition, if you would like a free trifold card outlining employees’ rights and responsibilities when they are contacted by a government agent, please send an email to email@example.com with “agent card” in the subject line.
About the Author
David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other 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. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and is a member of the RACmonitor editorial board.
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