As the government and private payors continue to invest resources into combatting fraud and abuse in the healthcare system, many practices are being faced with unexpected visits from state and federal government and private investigators, including but not limited to investigators from the Office of the Inspector General (OIG), Medicare and Office of the Medicaid Inspector General (OMIG), Internal Revenue Services (IRS), Office of Civil Rights (OCR), and Occupational Safety and Health Administration (OSHA). In the event one of these investigators decides to make a visit to your office, it is imperative to understand how you and your staff should respond to these visits in order to ensure that your interests are protected and that your exposure is limited.
If you, or one of your staff members, receive a knock at the door from an investigator, the first thing you, or your staff member, should do is check the investigator’s identification and credentials. It is important to keep a copy of this information containing such individual’s name, title, agency and contact information including phone, fax, address and email (ie in the form of a business card), as well as the date and time the investigator arrived at the office. This information should be kept in a safe place for future reference.
Physicians must remember to live by the golden rule — NEVER speak to, or allow anyone in your office to speak to, any investigator! Although these investigators are often friendly, it is important to remember that their intention is to obtain as much information from you and your staff as possible with respect to your practice. Other tactics often used by investigators are intimidation and promises of leniency. It is especially important to never speak with an investigator without counsel as anything that is said to the investigator can and will be used against you. Unfortunately many physicians and their staff speak freely and recklessly with investigators without counsel, and they often share information which is detrimental to the practice. Even if counsel is retained after the discussions, the information initially shared will always remain in the record.
You and your staff are not obligated to speak with anyone without counsel, and therefore you should explain to any visiting investigator that you would be more than happy to speak with the investigator, however, he/she needs to speak with your attorney first. It is important to note that government investigators do not possess subpoena power or have other legal authority by which to compel you to speak with them. Once counsel is obtained, you, the investigator and your attorney can set up a mutually convenient time to speak. Prior to such meeting, the attorney can often ascertain information from the investigator as to why your practice is under investigation and the specific areas of concern. This can often help in formulating an appropriate response at the meeting. Furthermore, you will be able to make certain that there is no disruption in the continuity of patient care and office operations generally.
Request for Records/Documents:
In most instances, visiting investigators will make a request to obtain a copy of medical records and other documents involving the practice, including contracts and corporate documents. Your staff should be informed that they should not release any records without first speaking with you. Furthermore, it is recommended that you not provide the investigator with the requested records immediately upon request. Instead, it is recommended that you or your attorney request that all such requested information be provided in writing so that you and your attorney can ensure that the requested records are within the appropriate scope and that the investigator is entitled to such records. Furthermore, by providing the records directly to the agency, you are in control of what is provided and you can ensure that complete copies of the records are provided. Unfortunately, when investigators make copies upon an initial visit, often times the investigators do not make complete copies of the records, or they copy additional information that may not be part of the initial request. As such, it is best to either provide the records directly, or set up a time for the investigator to come back after hours to make the copies. In addition to controlling the information disclosed, this will limit disruptions to your office.
Prior to turning over such information, specifically medical records, you also need to confirm that such disclosure is compliant with HIPAA and state privacy rules and regulations, and that the appropriate authorizations have been obtained.
A visit from an investigator can be an overwhelming and daunting experience. As such, even the most informal, initial contact by an investigator should prompt an immediate and well-coordinated reaction. It is therefore important to be prepared and to inform your staff ahead of time of the practice’s protocols with respect to responding to a visit from an investigator. As such, it is recommended to have a written policy in place outlining the specific steps that your staff should take in such instances, including contacting legal counsel and providing medical records. These protocols are extremely important, and can often mitigate an agency’s findings. As noted above, physicians need to ensure that they protect their interests and limit their exposure while cooperating with investigators, as the results of an investigation can be detrimental to a practice.
About the Authors:
Mathew J. Levy is a Partner of the firm and co-chairs the Firms corporate transaction and healthcare regulatory practice. Mr. Levy has particular experience in advising health care clients with respect to contract issues, business transactions, practice formation, regulatory compliance, mergers & acquisitions, professional discipline, healthcare fraud & billing fraud, insurance carrier audits including prepay and post payment review, litigation & arbitration, and asset protection-estate planning. You can reach Mathew Levy at 516-926-3320 or email: firstname.lastname@example.org.
Stacey Lipitz Marder is an associate at Weiss Zarett Brofman Sonnenklar & Levy, PC., with experience representing healthcare providers in connection with transactional and regulatory matters including the formation and structure of business entities, negotiating and drafting contracts and commercial real estate leases, stock and asset acquisitions and general corporate counseling. Ms. Marder also has experience advising healthcare clients on a wide range of regulatory issues including Stark, the Anti-Kickback Statute, fraud and abuse regulations, HIPAA, reimbursement and licensing matters.
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