By Ryan Pahnke
Originally published in Utah Physician Magazine, June/July 2023
The healthcare industry is highly regulated, so it is not unusual to receive a “civil investigative demand” or “grand jury subpoena” as part of a civil or criminal government investigation. A civil investigative demand (“CID”) is a discovery tool used by government agencies to obtain information relevant to a civil investigation before a complaint has been filed in order to commence a lawsuit against the recipient of the CID, while a grand jury subpoena is issued to gather evidence as part of a criminal investigation.
Medical providers who receive a communication from a government investigator about an investigation can find it unnerving. Providers who find themselves involved in a civil or criminal investigation, even if the target is another provider in the industry, should approach the situation carefully and diligently. The actions taken during the investigation can significantly impact the outcome, as well as the provider’s professional reputation and legal standing. Below are 12 general steps that a medical provider should consider when facing a government investigation:
- Engage legal counsel: Regardless of the type of government investigation, healthcare providers should at a minimum consult with legal counsel versed in healthcare legal issues and regulatory compliance before taking any action in response to the investigation. Experienced counsel can provide essential guidance throughout the investigation process while working to minimize impacts to the provider’s operations and secure concessions regarding the scope and timing of the investigation.
- Review and understand the allegations: The provider should obtain all available information regarding any allegations made against them. This includes any formal notifications, correspondence, or documentation provided by the government agency. It is important to carefully review and understand the nature of the allegations to effectively respond.
- Document preservation: The provider should initiate a document preservation process to ensure that all relevant records and documentation related to the investigation are maintained. This could include electronic files, patient records, financial records, correspondence, and any other relevant information. It is important to follow legal and regulatory requirements for the retention and preservation of relevant documents, which must often be produced as part of the investigation. Destroying, concealing, or altering company records in response to an investigation will likely destroy the company’s credibility with the investigator and negatively affect the outcome of the investigation.
- Cooperate with the investigation: It is important to cooperate fully with the government agency conducting the investigation. This includes responding promptly to any requests for information or documentation and facilitating any necessary interviews or meetings. Non-cooperation, such as instructing employees to not cooperate with investigators or making false statements, can have negative consequences and will be viewed unfavorably by the investigators.
- Internal investigation and self-assessment: Concurrently with the government investigation, the provider should conduct an independent investigation to assess the accuracy of the allegations and identify any potential compliance issues, even if those issues don’t appear to be related to the ongoing investigation. This self-assessment may help the provider to understand the root causes of the investigation and take appropriate corrective measures.
- Implement corrective actions: If any compliance issues or deficiencies are identified during the internal investigation, the provider should take steps to implement corrective actions. This may include revising policies and procedures, enhancing staff training programs, or strengthening internal controls to prevent similar issues from occurring in the future.
- Maintain open lines of communication: The provider should establish lines of communication with legal counsel and government investigators. It is important to provide accurate and timely information throughout the investigation process and to address any follow up concerns or inquiries raised by the investigators.
- Remain professional and respectful: It is important for the provider to maintain a professional and respectful demeanor throughout the investigation. This includes treating investigators with courtesy, refraining from making disparaging remarks, and refraining from discussing the investigation with colleagues or patients. Anything said or done during the investigation can be used as evidence and may impact the outcome.
- Review insurance coverage: The provider should review malpractice and other potentially relevant insurance policies to determine if the investigation is covered and if the insurance provider should be notified. It is important to understand the potential financial implications and obligations associated with the investigation.
- Educate staff: Where appropriate, the provider can educate staff about the investigation, its potential impact on the practice, and the importance of adhering to legal and regulatory requirements. Staff members should be trained to handle inquiries from investigators and to ensure that all documentation and information are appropriately directed to the designated legal counsel or someone within the organization responsible for compliance with the investigation.
- Monitor media and public perception: The provider should be aware of any media coverage or public perception surrounding the investigation to identify any inaccuracies or potential reputational risks. Responding to media inquiries should be done in consultation with legal counsel to ensure that the provider’s rights and legal interests are protected.
- Maintain confidentiality: Throughout the investigation, the provider should maintain strict confidentiality regarding the investigation. Only share information with individuals who have a legitimate need to know, such as the provider’s attorney or internal staff directly involved in addressing the investigation.
Navigating a government investigation can be a difficult process for any healthcare provider. By taking appropriate steps at the outset of the investigation, however, the provider can chart a course that will maximize the possibility of a positive outcome.
Ryan Pahnke
Ryan Pahnke practices in Ray Quinney & Nebeker’s Litigation, Securities, and White Collar, Corporate Compliance, and Government Investigations Sections. Ryan is a versatile commercial litigator who assists clients in navigating challenging business disputes from pre-litigation counseling through trial. In addition to his commercial litigation practice, Ryan also advises clients in navigating federal and state administrative, investigatory, and enforcement proceedings before various state and federal government agencies.