The government's heightened focus on fighting health care fraud and abuse has produced new investigative tools, greater collaboration among relevant federal and state agencies, and more aggressive enforcement methods. The Patient Protection and Affordable Care Act made these anti-fraud measures a major priority by introducing new data-mining methods now used by the Centers for Medicare & Medicaid Services. The law also enhances interagency coordination through the Medicare Strike Force — interagency teams of analysts, investigators and prosecutors who more easily can target fraud schemes.

 

The result of these efforts is already apparent. In early 2012, the government's Health Care Fraud and Abuse Program reported that convictions under the program had increased by more than 27 percent (583 to 743) between 2009 and 2011. It also reported that the number of defendants facing criminal charges filed by federal prosecutors in 2011 increased by 74 percent compared with 2008 data (1,430 vs. 821). It is very likely that 2012 produced another increase in these figures. By early October, there already had been 91 coordinated arrests nationwide.

The Unexpected Interview

One tactic that investigators employ is the "ambush" interview. If you are the subject of a state, federal, or joint state and federal investigation, the first sign most likely will be two agents appearing at your home or office for an interview. This is the moment when the most serious problems either begin or can be prevented. The outcome of the ambush interview, as well as its place and circumstances, will set the tone for the investigation and whether it ripens into litigation, civil or criminal. The interview is a perilous encounter and you should never undertake it without a lawyer present, and then only after detailed discussions with the lawyer.

The only way to avoid such a horrendous event is to never allow yourself to be interviewed without an attorney present and never within your premises. While this is critical advice for innocent individuals, it is even more critical for individuals and entities at risk. The lawyer, conversant in criminal law, investigative techniques, and health regulations and statutes, can prevent mishaps or advise whether you should submit to an interview at all.

The potential legal ramifications begin almost immediately once the agents knock on the door. If you allow them into your premises, anything they see can form the basis for a search warrant. Worse, too often there can be misunderstandings during these interviews. These disconnects may happen more frequently in health care investigations because of complex health care billing requirements — for example, what constitutes a medically necessary service and who decides?

Your Right to Say "No"

Investigative agents are trained to control the ambush interview; they will confront you when and where you are psychologically most vulnerable, and they will choose the time and place that promise to be most beneficial to their investigation. There is a science to interrogation and the "quick peek," which the agents have studied. You will not be entitled to a recitation of your rights. Therefore, there will be no Miranda warning and, in some cases, there will not even be a warning that the investigation is criminal in nature.

When agents arrive, physicians, health care executives and hospital employees often believe that:

  • by not answering or refusing to be interviewed, they are somehow acknowledging or telegraphing guilt;
  • they can weave, finesse or guess their way through the interview;
  • they do not have the right to refuse or postpone the interview;
  • they cannot refuse to respond.

The interviewing agents rely on these assumptions to extract information. But each of these beliefs is wrong.

You possess the absolute right to refuse to be interviewed or make any statement beyond "hello," your name and "goodbye." This is no place for concern over first impressions. Refusing to be interviewed is inadmissible as evidence to establish guilt or criminal state of mind. Indeed, it is a right guaranteed under the Fifth Amendment to the U.S. Constitution.

Don't Try to Outsmart Them

What are the agents looking for? First, information and false exculpatory statements, the most dangerous statement one can make. An FES is any statement that you knew or should have known was untrue. Why is this so important? First, à la Martha Stewart, it is itself a crime. Therefore, if the agents are unable to prove the offense under investigation, you are still at risk for this separate, new FES offense. However, the FES has more sinister consequences, because lying to the agents tends to demonstrate a cover-up, which shows guilty knowledge that can prove commission of a crime, even when none was committed. These interviews are a lose-lose event for you, unless an experienced lawyer is present.

You may believe that your superior academics and training, or some well-placed lies or bluffing, can get you through this. Such beliefs are unfounded. It is impossible to know how much these agents prepared before the ambush. They may have read medical records and bills, compared them with statistical norms, spoken to prospective witnesses, obtained bank and public records, subpoenaed third parties and more. Assume that you or your institution is the target of the current investigation and that the agents are well-prepared. Except in the face of a search warrant, it is crucial to avoid giving the agents any records, documents or other materials.

How you handle the ambush interview likely will have a serious impact later. For starters, a hostile demeanor is unnecessary. The agents are doing their job in what is invariably a courteous and professional manner. At this early stage, it is unknown what any future relationship with them will be. There is no advantage to burning bridges and squandering goodwill that may be desperately needed later. The best course of action is to politely refuse to be interviewed, say you wish to consult with your lawyer, ask the agents to leave immediately, and inform the agents that a lawyer will contact them within a few days. For the agents, this is a frequent and expected outcome. They will provide their business cards and leave.

Seeking Legal Help

Immediately upon the agents' departure, call your lawyer, who will perform a debriefing to glean as much information as possible while the event is still fresh. The lawyer may also immediately call the agents or prosecutor to acknowledge the message embedded in the interview and to garner information about the nature of the investigation.

The lawyer will carefully analyze the facts; remain in contact with the government; determine the direction of its investigation; review records, including records from the government that you would be unable to obtain; determine what the government knows, suspects or believes; and so on. You and your lawyer also may decide to delay the decision to be interviewed until the lawyer has conducted some investigation and interviews of his or her own. Only then are you and your lawyer in a position to make a decision.

Moreover, the lawyer may have ferreted out things you did not know about the criminal or haphazard actions of others. His or her presence at the interview will prevent you from misspeaking, covering up, making an FES, "pretending" not to know certain information, or guessing. Indeed, the collective decision may well be to forgo the honor of being interviewed.

Do not reach out to any potential witnesses or have any dealings with them, except for those who are unavoidable and in the regular course of business. Such reaching out can be viewed or construed as witness tampering. If any reaching out is to be done, it must be done by the lawyer. This applies to others involved in the investigation as well, and any attempts should be reported immediately to one's lawyer.

Don't think you can outrun investigators. They are skilled interviewers who likely have a mass of information related to you and your organization. Call your attorney before saying a word.

Howard M. Hoffmann is a partner in the Chicago office of international law firm Duane Morris LLP.