If you operate a healthcare business, responding to government investigations and informal requests for information is an everyday reality. Your response to such investigations and requests can often decide the fate of your business (this is not an exaggeration, as the below examples show).
One common thread in many of my cases is the admissions that clients make in attempt to be cooperative. But in the context of government investigations this need to cooperate should disappear in favor of a more thoughtful approach. You must first decide what type of investigation this is, whether it is pursuant to a warrant or subpoena, and what your potential exposures are. As a healthcare provider, you must be prepared to provide certain information and records but you are not required to talk or discuss any aspects of your practice. And even if you do decide to talk to the agents – who are on the lookout for any misstatements or admissions – consult your attorney. This could be a crucial step in preventing an escalation of the situation.
Let me give you an example. A few years ago, my client received a visit from the FBI. The agents were particularly interested in the billing practices under a prior ownership. The pharmacy owner considered his pharmacy to be in the top-notch compliance and therefore allowed the agents to come in and interview his staff. Not surprisingly, the owner received an invitation from the Department of Justice to informally discuss the case. Again – thinking that he had nothing to fear – he went to the interview without his lawyer. As a result of this interview, the client is now indicted for Medicaid fraud even though the wrongdoing stemmed from the acts of the prior pharmacy owner. During the interview, however, he made certain admissions that led the investigators to conclude that the client had knowledge of and abetted the wrongdoing.
Here is another example. A pharmacy was audited by the DEA and the agents confronted the PIC with a few prescriptions written by a doctor implicated in an illegal diversion scheme. To appear cooperative, the PIC stated that he could have exercised more diligence when filling these scripts. Armed with this statement, the DEA is now trying to settle the case with the pharmacy for a six-number figure because the PIC failed to exercise his corresponding responsibility. While we have argued that the statement was made under pressure and the pharmacy ran CURES reports on the patients (there was no patient or pharmacy shopping) and discussed diagnoses with the prescribers, the DEA has this admission from the PIC and is confident that it will be able to prove its case if we go to trial.
Another very common example that makes me cringe is when I read pharmacists’ letters to the Board addressing alleged violations. Most of these letters contain some sort of admission that could potentially cause serious trouble. And again these statements are made solely with the intent to cooperate and express remorse for the past conduct. I often see statements full of apologetic words and admissions but when I start digging deeper I discover that there was no wrongdoing or there was some minor record-keeping oversight not justifying the admissions or remorse. Before you send such statements, run them by your legal counsel specializing in dealing with this particular agency to which you are writing to.
The bottom line is, you do not have to talk to the investigators and appear to be cooperative. While you do have to comply with warrants and the Board of Pharmacy inspections, you do not need to talk to any of the agents or inspectors without consulting your legal counsel. A very common assumption that just mentioning a lawyer would make investigators think that a wrongdoing is taking place is erroneous. In fact, as Michael Steinberg says in his blog post “The Dangers of Talking to the FBI:” if you first obtain legal advice before answering questions, you are not perceived as uncooperative but “you are perceived to be aware of your rights.”