Subtle signs often signal federal investigation
Setting up effective provider defense critical
Seldom, if ever, do federal investigators tell a hospital, health system, or physicians practice that it is being investigated for potential Medicare fraud. Typically, federal regulators will surreptitiously build a case over a period of months or even years and alert the target of the investigation only when it comes time to deliver the subpoena or search warrant, says Gregory M. Luce, JD, partner in the Jones Day Reavis & Pogue law office in Washington, DC.
But often there are early warning signs of behind-the-scenes maneuvering by the feds that providers should watch for.
Some of the signs include:
• Tune in to word on the street.
Federal agents often visit the community of the facility they are investigating to talk to former patients and employees. Usually this information works its way through the health care grapevine. "Patients, at least the satisfied ones, will often call and tell you that an investigator came to their door, flashed a badge, and asked if they received certain services," Luce says. Patients dissatisfied with their stays often don’t call but do cooperate with the investigator, he adds.
Beware of disgruntled employees
In addition, employees, both past and present, are often contacted by agents looking to build a case, says Nanci L. Danison, JD, a Columbus, OH, attorney specializing in Medicare issues.
• Watch for odd calls from insurers.
"Usually these calls will come from out of the blue with the caller requesting copies of patient charts or other information that is not a normal follow-up on a payment or specific process," Danison says. It’s possible that these calls are being made at the request of investigators. Employees that field these calls should be encouraged to report them to supervisors.
• Track patient complaint calls.
Some patients call to complain about bills and say they are going to report the problem to the federal government. "When they say this, they often do end up reporting it," Danison says. "What you want to do is just store that information away in the back of you mind. Then, if you get a request from a payer for that patient’s charts, that could be a tip-off that you are being investigated."
Oftentimes, it’s easier for a small physicians practice to pick up these warning signs and put pieces together than it is for a large hospital to do the same, Danison adds. "In a hospital, these tips might be coming in to a lot of different people and putting [the pieces] together can be quite difficult," she says. In smaller physicians practices, there are fewer lines and more direct lines of communication, allowing the signs to come together quicker.
Begin your own investigation
After you learn a federal investigation is underway, Danison advises to do one of your own. "You have to get up to speed," she says. "By the time you find out about it, the government may have been working on it for a year or two or even more." The idea here, she adds, is to identify the areas the government is looking at, gather the facts, and begin formulating your own defense.
But doing this requires very careful maneuvering, lest you create a road map for the prosecution. "The most critical stage of an internal investigation is the initial stage," Luce says. "This is the time the health care provider should establish attorney-client privilege for the information that is gathered." By doing this successfully, any work that the provider or hospital gathers while conducting the investigation will be off-limits for prosecutors.
But too often, once administrators discover the federal government has initiated an investigation, the chief financial officer reacts by immediately sending in auditors and accountants to find where the problem is. And while many states recognize an accountant privilege, the federal government does not. An attorney must conduct or direct the investigation to prevent giving a "blueprint" for prosecution to the federal government, Luce says. In most cases, this can be done with in-house counsel, he adds.
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