Page 17 - Winter 2024 Bulletin

Medical Legal
My physician’s office received a civil investigative demand
from the federal government. What do I do next?
Erin Smith Aebel eaebel@trenam.com
First, take a deep breath. Then, read the document. A Civil Inves- tigative Demand (CID) is a tool the government uses to obtain informa- tion and documents to investigate potential violations of the federal False Claims Act. It is more techni- cally described as an administrative subpoena that allows federal govern- ment agencies to request a plethora of information from private entities
without a more formal court procedure. You must take a CID seriously and respond promptly. It is highly recommended that you obtain a lawyer experienced in responding to CIDs to help you through the process.
This leads us to the first step: Retain a lawyer experienced in responding to these demands and their related investi- gations and lawsuits. The appropriate lawyer will likely be a board-certified health lawyer, a white-collar criminal de- fense lawyer, a litigation lawyer, or a team of all three.
Next, take steps to preserve any potential documents, whether paper or electronic, that may be responsive to the requests in the CID. It is possible that the requested infor- mation could appear to be overbroad. In that case, your law- yer may attempt to limit the scope of these requests. Do not destroy any potentially relevant documents because the destruction of responsive documents may lead to criminal claims for spoliation of evidence, a technical term that can lead to a court allowing various consequences because of the destruction of documents.
Next, work with your lawyer to timely produce the docu- ments as requested or negotiated. At this time, you or your lawyer should also be investigating the potential claims. The CID will not tell you the specific claims the government is investigating. The requests in the CID can help determine what potential issues the government is likely to be investi- gating, however. For example, are you being asked about a particular CPT code or financial arrangement with a referral source? This could indicate the CID is based on a suspicion of false claims submitted to the government in the form of Medicare claims. The alleged falsity of these claims could be
predicated on alleged violations of the federal anti-kickback law or the federal Stark law.
A health lawyer or billing expert’s review of the CID and responsive documents can help you understand the po- tential claims the government is investigating. It could be months or years before you hear back from the government. Therefore, reviewing potential issues and conducting inter- nal compliance at the time of receiving the CID may help identify and fix compliance issues early, allowing you to mit- igate potential damages.
It is also important to be aware of the potential cases that may come from a CID. For example, a qui tam or “whistle- blower case” can be connected to the CID. A Qui Tam allows individuals to file lawsuits on behalf of the federal govern- ment to recover monies unlawfully paid by the government. Whistleblowers may be rewarded with a percentage of the amounts recovered plus attorney’s fees. In a Qui Tam case, the government may require that you agree to a compliance plan or may seek to limit your future participation in Medi- care, among other penalties. Additionally, federal criminal prosecutors may also investigate the claims to determine whether they want to criminally prosecute you.
In sum, a lot is usually going on behind the scenes when a physician’s practice receives a CID. A properly trained attorney-managed team will be able to help you through this process, with the goal of minimizing potential liability, time, expense, and pain, however, we recommend that physicians take a CID request seriously and follow the above steps to guide them through the process, ensure their practice is in compliance with the law and minimize any consequences arising from earlier actions.
Erin Aebel and her co-authors, Trevor Carson and Brigid Merenda are with Trenam Law, an HCMA Benefit Provider.
HCMA BULLETIN, Vol 70, No. 3 – Winter 2024
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