In recent years, the government has increased its enforcement efforts against physicians, accusing them of a variety of offenses. Most commonly, the federal or state government investigates physicians for alleged fraudulent billing practices, including looking into the number of patients seen, the types of tests ordered, and any upcoding or unbundling. The government may also seek to investigate a physician’s relationships with medical service companies, including pharmacies, device manufacturers, and laboratories. They may ask about consulting or other arrangements you have with such companies to determine whether they think an illegal kickback has been paid to you by the company.
If government agents show up at your office with a warrant or a subpoena, your reaction is critical. Often, the steps you take in the first days — or even hours — in response to a government investigation will either resolve the investigation quickly or lead to a long, drawn out process that may involve an indictment. Make sure everyone on your staff, especially your receptionist, knows that government agents must be admitted to the building, but that they should not speak to them when they arrive other than to tell them that you or a spokesperson for you or the practice will be with them shortly.
Ideally, you will be able to consult with an attorney before you are forced to comply with a government investigation. If the agents come with a warrant, which signals a criminal investigation, you may not have that opportunity. With a warrant, the agents usually demand to take documents and computers into their possession immediately. If this situation occurs, we recommend asking all of your employees to stay out of the agents’ way (perhaps in a break room or other out of the way area) and staying with the agents yourself as much as you can. Let the agents know that you are keeping a list of the items they take into custody, and write down in as much detail as you can exactly what was taken. We recommend you call an attorney as soon as possible after the agents leave.
If the agents come with a subpoena, or call you to tell you that they will be coming with a subpoena, then it is urgent that you talk to an attorney with experience in this area immediately. A subpoena is a demand for testimony and documents about certain subjects. It will contain a date by which you must respond. An attorney will be able to review the subpoena and determine whether the government is entitled to the documents it seeks. The government may have asked for documents that are privileged or otherwise immune from production. Additionally, an attorney may be able to negotiate a narrowed scope of the subpoena and a rolling production of documents over time so that you have the opportunity to find, copy, and number the requested documents. In any event, do not destroy or try to hide any documents – the penalty for doing so will be extremely severe. In fact, as soon you are served with a subpoena or become aware that you will be served with one, you should suspend any document retention or destruction policies you have in place and advise all employees not to throw away, alter, or otherwise destroy any documents.
The agents may try to interview you or your employees. We recommend that you do not speak to them without your attorney’s presence. Make sure your employees know that they are not required to speak to the agents and have the right to have an attorney present if they choose to do so. Be aware that in some instances, the agents may attempt to contact your employees at home. They should know that they have the same rights at home as they do at work.
If you face these or other challenges in your practice, talk to us. Find more information at www.federal-lawyer.com or contact attorney Dr. Nick Oberheiden at [email protected]. Dr. Oberheiden holds a Juris Doctor from UCLA School of Law; his practice is exclusively dedicated to federal law. Oberheiden, P.C. is located at 5710 LBJ Freeway, Suite 120, in Dallas, Texas 75240. Prior results do not guarantee a similar outcome. This note may constitute attorney advertising in some jurisdictions.
If you are facing a government investigation, contact our offices to see how we can provide the legal representation you need.