What are our rights during a federal investigation?
Question: With all the talk about the federal government cracking down on Medicare fraud and other improper billing, there have been reports of investigators "raiding" hospitals and taking away billing records. If that terrible day comes, I’m afraid my hospital administrators will look to me for guidance on how to respond. What should I do? Are we completely at their mercy when they demand records, or do I have any right to say no and protect the confidentiality of those records?
Answer: When Medicare fraud investigators show up, there is "almost nothing you can do about it. They get whatever they ask for," says R. Stephen Trosty, JD, MHA, director of risk management with Michigan Physicians Mutual Liability Company in East Lansing. "You have a lot of obligations and very few rights."
You can’t say no’
If your facility is suspected of Medicare fraud, the people showing up at your door may include officials from various government agencies, federal marshals, and Federal Bureau of Investigation agents. Even if no law enforcement officers accompany the government officials, you still are obligated to hand over any records they request, including patient records. They do not need a search warrant or any other type of warrant; they are entitled to the records based on who they are.
"You can’t say no," Trosty explains. "This is all very one-sided, very much out of your hands at this point. You can’t deny them any records based on patient confidentiality or any other reason."
You are entitled to inventory the records so that you know what is taken, and the investigators will be reasonable enough to allow you to copy any records that are vital to the operation of the facility or the ongoing care of patients. They will want the originals, however.
Trosty notes that risk managers may be uneasy about handing over confidential records, and he says you can ask them to sign a statement acknowledging that they are taking custody of confidential material and must protect it. He also points out that the investigators may be present for weeks while they decide which records they want and give you time to compile them.
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