Your employee handbook likely addresses, in great detail, the do's and don'ts of using the internet while at the office, guidance on HIPAA, and even the company's policy on sexual harassment, but does it provide any instruction as to what should be done if a team of armed federal agents shows up at your office early one morning to serve a search warrant, investigative demand, or subpoena? The most recently released analysis of the government's efforts to combat healthcare fraud reveals that 74 of the subjects in the government's civil healthcare fraud investigations during 2010 were insurance companies. As to criminal healthcare fraud investigations during that year, 79 of the subjects were insurance companies.
These days, recovering monies paid as a result of alleged healthcare fraud is a booming business. In 2012, the Department of Justice secured a record-breaking $5 billion in settlements and judgment in civil cases involving fraud against the government, the bulk of which involved healthcare fraud initiatives. As the Affordable Care Act continues to be implemented over the next few years, it is likely that these numbers will increase as the government will be under intense pressure to show the American public that it is doing all it can to stretch healthcare dollars and eliminate waste.
As Confucius said: "A man who does not plan long ahead will find trouble at his door." Some of the federal agents that showed up at your office asked the receptionist to direct them to the IT department and the file room. Others asked for a signature on some official looking forms. That's okay, right? Wrong! Should agents appear at your office it is important to first confirm their authority by politely requesting their identification and a copy of any search warrant, investigative demand, or subpoena that have come to execute or serve. While no employee should obstruct the authorities in their work, it is important, especially in the healthcare field, to ensure that sensitive or confidential records are not hastily released when not actually required by law. Likewise, it is imperative that employees do not mistakenly consent to a search by signing a document that they do not fully understand.
As soon as possible, the company's legal department should be notified and provided a copy of any search warrant (or other authorizing document) furnished by the agents. If the agents have come to execute a search warrant, they should be requested to wait until the company's lawyers arrive on the scene, but note that they are under no obligation to oblige.
This is the first in a series of articles offered by Akerman Senterfitt regarding general legal topics of interest to health plan executives. Nothing in this article should be construed as legal advice or a legal opinion, and readers should not act upon the information contained in this article without seeking the advice of legal counsel. Akerman Senterfitt represents and advises healthcare clients in all aspects of government investigations, regulatory enforcement matters, whistleblower actions, grand jury probes, internal investigations and trials. For further information, please contact a member of our team including the author of this article, Ari Gerstin at 305.982.5680 or at ari.gerstin@akerman.com; or Richard Sharpstein at 305.982.5556 or at richard.sharpstein@akerman.com; Jacqueline Arango at 305.982.5527 or at jacqueline.arango@akerman.com; or Bruce Platt at 850.425.1634 or at bruce.platt@akerman.com. Additional information can also be found on our website at www.akerman.com.
