When You Need a Health-care Fraud Lawyer

Essentially, whenever you sense you’re the target of a CMS investigation.

DAVID LAIGAIE, ESQ.

Doctors are usually quite good at identifying when patients need a specialist. They are often clueless, however, in identifying when they need a lawyer who specializes in health-care fraud. This article provides three specific situations that will help doctors make the right call.

Doctors make great clients. I know because I have represented them in health-care fraud investigations for more than 20 years. They are smart, take-charge people who can quickly assimilate complicated concepts, and are not afraid of hard work or of getting their hands dirty. At the same time, they are prone to micromanagement and want to be in the middle of everything. This can lead to disaster, as demonstrated in three recent cases where clients contacted me too late.

Three Doctors, Three Problems

The first case involves Dr. Smith, an energetic internist with a busy practice. He prides himself on working hard and in getting things done promptly. Thus, when his office received a subpoena from the Department of Health and Human Services (HHS), he instructed his staff to gather and produce the records. He did not have anyone independently review the records, supervise their production or even make a copy. This was a mistake. The records they produced were incomplete and disorganized. A year later, Dr. Smith was shocked to receive a letter from a federal prosecutor threatening suit under the civil False Claims Act and demanding payment of hundreds of thousands of dollars. It was only then that he thought to call me.

By contrast, Dr. Jones, a radiologist, immediately grasped the import of a subpoena issued by the U.S. Department of Justice. Because she wanted the response to be done right, Dr. Jones flung herself personally into the process of identifying, reviewing and producing responsive documents. Being a perfectionist, Dr. Jones made sure to gather information that was missing from the files as well as to supplement any chart notes that were incomplete, improperly worded or illegible. Several months later, Dr. Jones was flabbergasted to receive a letter from the U.S. Attorney’s Office informing her that she was the target of a federal criminal investigation into health-care fraud and obstruction of justice.

Finally, Dr. Edwards was neither disengaged nor a micromanager. And he understood the need to get experienced counsel involved immediately upon receiving a subpoena from a governmental agency. Yet Dr. Edwards fell for the oldest trick in the book. He spoke with government agents who appeared at his home out of the blue one evening. He did so after the agents — who were ever so polite — told him that he definitely should have counsel involved if he was guilty. Not wanting to appear guilty, Dr. Edwards spoke with the agents. That decision resulted in Dr. Edwards being charged with a federal crime.

In each case, the post-mortem is simple: The physicians should have contacted experienced counsel sooner. The question is, how can you avoid making the same mistakes? For starters, when you are confronted with any of the following three situations, you should immediately engage experienced counsel.

1: A Government Subpoena is a Red Flag

Medical practices receive subpoenas all the time, especially if they regularly treat people involved in litigation. Such subpoenas — typically issued by lawyers representing insurance companies or individuals — can and should be answered in the normal course. A subpoena issued by a government agency, however, must be treated differently. Such government agencies include CMS, HHS, Justice Department, U.S. Attorney’s Office, state Medicaid fraud control units or state attorneys’ general offices. If you receive a subpoena issued by any of these entities, you should immediately contact experienced counsel.

The federal government typically uses three different kinds of subpoenas to gather records or to compel testimony in health-care fraud cases.

■ HIPAA subpoena. The Justice Department issues this type of subpoena. It will state that it is “issued under the authority of the Health Insurance Portability and Accountability Act of 1996.”

■ Civil Investigative Demand (CID). This type of subpoena is issued by the Department of Justice, usually acting though a district U.S. Attorney’s office. A CID will state that it is issued “pursuant to the False Claims Act.” A CID is used to investigate whether a provider has violated the False Claims Act, a frequently used civil statute that prohibits the filing of false or fraudulent Medicare and Medicaid claims. A CID often indicates that a whistleblower has filed suit. The government is gathering information to determine whether it will take over that suit.

■ Grand jury subpoena. This is the scariest of the bunch. It means that an active criminal investigation exists, because grand juries are used to investigate and to file criminal charges.

Why call experienced counsel upon receiving any of these subpoenas? First, experienced counsel will contact the government lawyers. By knowing what to ask and how to interpret cryptic answers, counsel will gain insight into the nature of the investigation and the client’s possible exposure. Second, experienced counsel will coordinate locating, reviewing and producing documents that respond to the subpoena, ensuring that the right documents will be produced and that the problems encountered by Drs. Smith and Jones in the above examples will be avoided. Finally, experienced counsel will conduct an investigation to uncover any problems, help to fix those problems and begin to prepare the best defense. The sooner experienced counsel is engaged, the sooner he or she can help.

2: You Have Been Accused of Wrongdoing

Whistleblowers today drive the government’s heath-care fraud enforcement agenda. Whistleblowers identify targets for the government to investigate and craft new theories of liability for the government to assert. Whistleblower-led cases have resulted in the government’s recovery of more than $25 billion in recent years. And whistleblowers have been paid more than $1 billion for their efforts.

Each year, more and more whistleblowers file cases. As a result, physicians must take seriously every allegation of wrongdoing leveled against them, no matter the circumstances or motives of the accuser. That means contacting experienced counsel who can investigate the alleged wrongdoing, fix any problems and create the best possible circumstances in case the accuser files a whistleblower claim. Ignoring such allegations and hoping for the best is not an appropriate strategy.

3: Government Agents are Asking Questions About You

Government agents frequently appear at witnesses’ and targets’ homes in the evening or on weekend mornings seeking to have a “friendly chat.” They typically do not explain what they are doing and usually give the impression that the matter is not serious and that the discussion will only take a few minutes. Notwithstanding what the agents may say, the matter is deadly serious.

Luckily, in America, we have the right to decline to speak with government agents. We also have the right to be accompanied by counsel if we choose to speak. If an agent approaches you, politely decline to speak until after you consult with experienced counsel. Do not ask the agent whether you need an attorney — you do. And do not let the agent make you feel badly for declining to immediately subject yourself to questioning.

Government agents will also seek to interview others — colleagues, patients, employees, former employees, etc. — concerning you. Often, people who have been contacted will reach out to tell you about it. If you learn that government agents are questioning others about you, immediately contact experienced counsel. Do not speak substantively with people who were interviewed and do not tell them what to say or what not to say. Instead, involve experienced counsel who will then make appropriate inquiries.

By being aware of situations in which you have been targeted for more than a routine audit, you will minimize the chances of finding yourself in Drs. Smith’s, Jones’ or Edwards’ predicament. OM

Mr. Laigaie is a partner at Dilworth Paxson LLP, Philadelphia, where he chairs the corporate investigations and white-collar group. He concentrates in complex civil and criminal litigation, including Federal False Claims Act cases. Mr. Laigaie regularly represents medical providers, suppliers and institutions. He can be reached via e-mail at dlaigaie@dilworthlaw.com or by phone at 215-575-7168.