Healthcare providers in Detroit who are being investigated for healthcare fraud face serious repercussions if they are convicted. Not only can both the institution and the individuals running it be subject to hefty fines, but officers can be sentenced to prison and the provider can lose access to the healthcare program. Raising a successful defense against the allegations at every stage of the proceedings is essential.
Preserve All Evidence
There may be an urge to hide or even destroy evidence upon learning of a pending healthcare fraud investigation by the Department of Health and Human Services Office of Inspector General (OIG) or the Centers for Medicare and Medicaid Services (CMS). Following through on this urge, however, will only make things worse.
Under the rules of spoliation in Michigan, judges and jurors can presume that evidence that has been intentionally destroyed would have been damning against the party that got rid of it (Trupiano v. Cully, 349 Mich. 568 (1957)). In many cases, that presumption is stronger than the evidence would have been.
Consult With a Healthcare Fraud Defense Attorney
If there are federal healthcare fraud charges, the most important defense strategy is also the simplest: Hiring a healthcare fraud defense counsel or attorney is the best way to improve the potential outcome of the investigation. In some cases, it can keep the investigation from escalating into a civil or criminal inquiry.
Importantly, the lawyer together with the whole defense counsel should have experience – preferably extensive experience – defending against healthcare fraud allegations. Not just any criminal defense attorney will do. Healthcare law is filled with so many nuanced regulations and unique investigative procedures that many criminal defense lawyers – even those with experience in white-collar crime defense – find themselves over their heads.
Hiring a lawyer early in the process is extremely important, as well. Generally, calling a healthcare fraud defense attorney should be the first thing that providers do after learning of a potential investigation. This can allow the defense team to conduct a thorough internal review of the allegations. By getting ahead of the coming investigation, a healthcare fraud lawyer can find both the strengths and weaknesses in law enforcement’s case, helping them craft an effective defense strategy. Healthcare providers who delay hiring an attorney will reduce the time available for the internal review. This can leave the defense team blind to the long-term ramifications of raising a particular line of defense.
The internal review of the alleged fraudulent activity may be one of the most important parts of the defense. What it uncovers will inform all of the next steps. If there is a fraud, it will reveal how widespread it is, as well as whether it is institutional or individual. On the other hand, the review may reveal that there were errors, but that they were unintentional and therefore not fraudulent, or it may find that the alleged fraud is simply unfounded. These different scenarios call for drastically different responses to the investigation, and can even alter the goal of the defense. Without a thorough review before the investigation begins, defense lawyers have to adopt a defense posture and strategy that may not make use of the strengths of their position or the particular facts of the case.
Be Careful When Talking With Investigators
Once the investigation has begun, investigators from the OIG or the CMS – sometimes in conjunction with the Office of Inspector General for the Michigan Department of Health and Human Services (MDHHS) – will interview supervisors and workers at the facility. It is imperative to have a plan and to stick with it for these interviews.
Generally, the best defense strategy for this stage of the investigation is to have employees at the healthcare provider refer to the investigators up the chain of command. Having a single person or a small team of individuals answering the investigators’ questions reduces the chances that different workers provide different or conflicting answers to the same question. Even if the discrepancy is harmless, investigators will see it as a sign of potential fraud and will follow up on the lead, lengthening the interview process.
It is also a good idea to be selective in how you respond to their interview questions. As law enforcement officers, OIG or CMS investigators cannot force you to talk. While refusing to talk at all will be seen as stonewalling and will likely lead to an escalation in investigation tactics, like a search warrant or a subpoena, oversharing information can end up hurting both the individual and the healthcare provider.
It is important to remember that, at this stage, investigators tend to see exculpatory explanations as self-serving and not credible, but incriminating answers as reliable admissions. Providing information in an attempt to show that there was no fraudulent activity often falls on deaf ears, while also coming with the risk of divulging something incriminating.
Inform Workers of Their Rights and Advise Them to Hire an Independent Lawyer
Informing workers of their rights during the investigation is also an important part of an effective defense strategy. This includes telling workers that it may be in their interest to hire an independent attorney of their own.
One of the worst things that can happen during a healthcare fraud investigation in Detroit is having a worker who does not understand his or her rights during the process. They may think that they are legally obligated to provide a full answer to every question they are asked during the investigation. Once investigators see that they can get information from someone very easily, they will focus their attention on that person to learn as much as they can. This undermines the institution’s interest in controlling what information is provided at this stage of the proceeding.
It is also important to tell workers of their rights, and their potential interest, in hiring their healthcare fraud defense lawyer. The healthcare provider’s attorney will represent the provider’s interests and advocate on its behalf. While this is often aligned with the interests of its workers, there are times when it is not, such as when a worker has been committing healthcare fraud without the knowledge of the employer.
The Importance of Strictly Following a Compliance Plan
Of course, the best defense strategy for healthcare fraud cases is to avoid an investigation, altogether. The most effective way to do this is to craft a compliance plan that does not trigger an investigation or raise the suspicions of the OIG or the CMS. Creating such a plan often takes the legal help of a healthcare fraud attorney, who will know what will raise red flags in enforcement agencies and lead to a further investigation. By knowing the signs that lead to an investigation, a healthcare fraud defense lawyer can create a compliance plan that can avoid any suspicion, at all. Promptly combat healthcare fraud to avoid any untoward investigation.
Oberheiden P.C. © 2022 National Law Review, Volume XII, Number 111