Healthcare Internal Investigations Law Firm
As a healthcare office, you have an interest in managing your business and keeping track of how tasks are performed in the office. As a result, you may find yourself conducting regular audits throughout the office. However, there may be some instances when you realize that a more in-depth review of how office tasks are handled, maybe because of a tip or because you got word that there is a federal investigation.
As a result, your audit turns into a full investigation. This article explains how these investigations are conducted and shows explanations as to the complication an office may face when an internal investigation occurs.
As you read, you will see there can be various reasons why you will need to seek legal assistance. Even if you have in-house counsel, it may be important for you to seek outside counsel and in some instances a criminal defense attorney is appropriate.
What is an Internal Investigation?
Internal investigations are research projects that you conduct yourself or that you hire someone else to perform. These reviews will likely include similar information as government investigations. However, you will have access to the data, documents, and employees to interview.
Why Perform An Internal Investigation?
There can be many reasons you decided to conduct an internal investigation of one of the medical practitioners within your office. It could be that you have suspected something off with the type of work produced by an employee. However, the reason for an internal investigation could be a lot more severe than that.
Often, healthcare offices are made aware that there may be false acts in the way people are conducting business and providing services. For example, a patient has called stating that something odd appeared on a statement or a bill. This would require you to investigate the reasons for the accounting issue on statements or bills.
Another example of conducting an internal investigation is because you received a tip from someone within the office–or maybe another source–that one of your employees may be inappropriately conducting their medical services.
Finally, you may decide to conduct an internal investigation because you have been notified that one of your employees is under federal investigation. While many may think that conducting an investigation at the same time as the government is inappropriate, doing so could actually help you get a better picture of the fraudulent acts that could possibly be taking place in your office.
Conducting Internal Investigations
Conducting internal investigations will include two major steps:
First is to collect and review all relevant documents. When reviewing these documents, it will be necessary for you to look at the different things that could be used to carry out healthcare fraud.
Second, when beginning to question certain documents, it will be important that you take note of the author of those documents and who works with that author.
Overall, you want to be as informed as possible to get a better picture of acts that may have occurred in your office.
What To Do With The Information
Once you have collected and reviewed all documents and determined who may be involved or who may have knowledge of the fraud, you will need to conduct interviews.
When you are conducting these interviews, you will need to inform each person being interviewed:
- The reason for the investigation (tip, complaint, government investigation)
- The specific problem that is causing concern
- Who is conducting the interview, and
- Why you are seeking this info (to provide advice). You will also need to be candid with the individual and inform them that the information they provide to you will likely be given to any agency that is conducting an interview.
Upon the completion of interviews, you will summarize the interviews into a legal memorandum. While reviewing these interviews, it is good practice to determine if any of the individuals who were interviewed, or any names mentioned, need legal counsel. However, it is important for you to remember not to provide them with any legal advice.
Consequences of Internal Investigations
Concerns that may arise when thinking about or while conducting internal investigations may vary. This is because the internal investigation could raise a lot of questions about the things that are happening in your office. You will probably question who should be conducting the interview, who is writing the document, and any processes that can be improved.
What To Do With Information Found In The Investigation
During these investigations, you should be asking yourself what you will be doing with any information that you find. If you find fraudulent acts are being committed in your office, what obligations do you have to turn these findings over to authorities? Additionally, disclosure will depend on the protections you may have under either attorney-client privilege or attorney work product.
Generally, if an attorney is retained to investigate or provide legal counsel to an individual, including a corporation, the findings, discovery, and discussions are protected by attorney work product and attorney-client privilege. These privileges can be waived by disclosing this information to the government.
In fact, various federal courts have decided that if the findings are disclosed during an audit, that the privilege is waived such as in In re Columbia /HCA, 293 F.3d 289 (6th Cir. 2002). Therefore, depending on the information you have and what it pertains to, you may or may not be forced to waive privilege.
Do I Have A Legal Obligation To Disclose?
This may sound confusing. Our office can provide assistance even if the process becomes more difficult.
Disclosure decision making will become more difficult since there could be instances when the disclosure is actually required. For example, 42 U.S.C. § 1320a-7b(a)(3) gives attorneys and clients an obligation to report fraud. Essentially, this statute regulates what information you can withhold from the government when it relates to healthcare fraud.
If you withhold or fail to disclose information or events that would show someone’s right to, or the payment of Medicare was affected, you can be charged with a felony.
Consequences of Discovered Information Should Promote Frequent Internal Investigations
The possibility of you getting one of your employees into trouble or maybe even getting yourself into trouble for not disclosing fraud by others should not discourage you from conducting internal investigations.
As an office of healthcare providers, it is in your best interest to conduct audits and listen to complaints made by patients and employees within the office. These audits and complaints can raise your awareness of the possibility of misconduct. Once you are aware, you will need to take action to stop the fraudulent acts.
In addition to the criminal healthcare fraud statute, the Sarbanes-Oxley Act of 2002 may also require the disclosure of any knowledge that would make you think that a government investigation could be initiated or if you believe that the government would investigate a certain situation if they knew of the information that you have.
While the Sarbanes-Oxley Act has to do with financial reporting of businesses and corporations, these financial reports could include evidence of fraud or could lead to the discovery of fraud.
However, in addition to all of these concerns, you or your legal counsel will be required to analyze the information that is found to determine if there was:
- Either overpayment or errors and
- Reasonably assess the findings to determine if there is a possible law violation.
Different Types Of Legal Advice Pertaining to Internal Investigations
Internal investigations can be complicated. If your investigation results in findings of possible healthcare fraud, the level of complication will likely rise. There is a good chance that throughout the process, you will have different attorneys for different issues.
First, while you may have an in-house counsel, if you decided to conduct an internal investigation, you are best to hire outside-counsel to complete that task.
If you find that you are unsure if disclosing your findings is necessary or you failed to disclose already, it is likely that you will need the advice of a criminal defense attorney.
The Need For Different Types Of Attorneys
Generally, attorneys who are in-house counsel have your best interests in mind. An in-house counsel will give you guidance on the best ways to proceed on most issues. They have the ability to weigh your business goals against legal outcomes you might face.
On top of knowing your business goals, they are also aware of your business practices, policies, and processes. Generally, this can make an internal audit to be conducted quickly. Unfortunately, having an in-house counsel does not provide you with protections, such as attorney-client privilege that an outside counsel can provide.
Outside-counsel will be a private attorney from outside the business who is hired to conduct the internal investigation. An outside-counsel will have an independent view of the business and will be able to separate any biases.
Additionally, if outside-counsel is retained, they will be hired as an attorney for the business or corporation. This means that any investigation conducted, the information discovered, and any opinions written, will for the most part, be considered an attorney-client privilege and attorney work product.
This means that discussions, information discovered, and documents created by the outside-counsel, most likely do not need to be disclosed.
Criminal Defense Attorney
If the decisions you make on disclosure of information lead to criminal prosecution under 2 U.S.C. § 1320a-7b(a)(3), you will need to get the advice of a criminal defense attorney.
Again, this is why doing internal investigations is actually important. The disclosure rule provided by the federal government is not just about you conducting an investigation and finding out that someone is committing healthcare fraud.
Rather, you can be accused of violating the rule even if you just reasonably know, but disregard, that a person in your office is committing healthcare fraud.
Conducting an internal investigation will help protect yourself. An internal investigation will help you to see the various types of actions within your office. You will likely find that most actions are legal. However, you could find that some are improper and illegal.
Being aware of the acts that are taking place can help you prevent healthcare fraud. These investigations could even minimize the legal actions that could be taken against you.
One of our experienced criminal defense attorneys can help you determine what information needs to be disclosed and provide you with advice as to the different things that are discovered. In the event that an investigation is being conducted, whether internal, external, or by the government, contact a defense attorney for advice on acts that could relate to criminal conduct.