June 2000 Bulletin

Get ready for day OIG is at your door

Have a compliance plan and your attorney’s phone number handy

By Mark E. Rust

As far as orthopaedic surgeons and the healthcare industry, generally, are concerned, one unfortunate fallout from the end of the Cold War was that a large number of FBI agents transferred from Cold War intelligence duties to investigation of the health care industry. The government concluded that if it could investigate and prosecute large numbers of healthcare practitioners thought to be abusing the system, spiraling healthcare budgets could be held in check through the return of money fraudulently spent by the government on fraudulent practices.

This theory, in combination with whistle blower actions brought by individuals who are aware of billing fraud, have added significantly to government coffers. This only reinforces the notion that more and tougher investigation and prosecution is needed. That spells trouble for orthopaedic groups and others who are in the high dollar volume business of billing Medicare.

This increases the percentage chance that a representative of the federal government, an FBI agent or a member of the Office of Inspector General, (OIG), may one day come knocking at your door. They will not be there for tea. Sometimes armed with a search warrant, other times empowered under the Medicare statute that gives the Department of Health and Human Services the right to cart off records, the investigators will be looking for evidence of prosecutable offenses.

Stay calm, and remember some basic principles. First, neither you nor any of the other employees or owners of the group need to talk with the investigator. Ironically, if the investigators have come there to arrest an individual (highly unlikely), the investigator would be forced to tell that employee of his or her right to remain silent. Because investigators are inevitably not there to arrest, they are not forced to tell you that you have the right not speak.

Next, call your attorney, preferably, one with a firm large enough to have a partner who is a former member of the U.S. Attorney’s office, and is now operating in a defense capacity. They will be your best source of advice in the first few hours of the investigation.

They also will be able to give you advice on what to say to your employees. Although employees do not have to speak with government, it does not follow that you can order them not to speak. Even a mild or subtle admonishment to not speak to an investigator could be deemed an obstruction of justice. Your attorney will tell you what to say to those employees given your particular circumstance to help protect you from such a charge.

The next thing the attorney will do is contact the OIG or Justice Department, whichever is the responsible agency, to determine what the investigation is about. Getting information quickly about the target of the investigation is critical to both future defense and your peace of mind.

Most of the documents and records investigators seek they will normally get, either through a search warrant or under the statutory or contractual rights that a Medicare official may have in obtaining records relating to billing. Even though investigators will in all likelihood get all the records they want, it is imperative to catalog and record everything that was taken by them, including copies of the documents. Your attorney needs to review those documents initially to determine what the investigator might find. This knowledge will strengthen your hand in any subsequent negotiations. Without it, your attorney will largely be flying blind.

If, like most groups, the investigator has not yet knocked on your door, you have the ability to largely avoid fear of such a day of reckoning through planning. Such planning can both help assure that mistakes (innocent or otherwise) are not made, as well as help defend in the event that mistakes are indeed made. These days such anticipating is often referred to as a "compliance plan." At their most basic, these plans set forth the method by which the practice will do some self-policing to ensure that billing practices comply with the law. The plan also will have a method for requiring an employee to disclose to the appropriate senior person in the office when the employee believes something is wrong, and will set forth the steps the practice will take in the event mistakes in billing have been made.

These plans can be done on a cost-effective basis and provide comfort in the event of an investigation. If the practice does have such a compliance plan in place when the investigators come knocking, it is not a document that should be volunteered. The first thing you will want to do is review it with your attorney. He or she will be interested in the same thing the investigators would be interested in; whether you followed the compliance plan or whether you simply "purchased" the plan and put it on the shelf. It makes sense to keep your options open and discuss it with your attorney first.

Mark E. Rust, is a partner in the Chicago law firm of Barnes & Thornburg and concentrates on health care law.

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