It's Winter Time and Flurries of Subpoenas Are Flying on Medicare and Medicaid Cases

Monday, January 12, 2015
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Here it is: the New Year.  We all want to start it off on the right foot, with bills from last year paid and realistic resolutions made.  Then comes a knock on the door, or a certified letter, and it blows you away like the down of a thistle.  You've received your first subpoena of the year. Happy New Year!

But don't worry, you are not alone.  From the calls we have received lately, it appears the Medicare and Medicaid programs are producing a blizzard of subpoenas.


Never Ignore or Delay When Receiving a Subpoena.

A subpoena should never be ignored.  In fact, you should take special efforts to warn your staff, your practice manager and your mail clerk to immediately bring such documents directly to you.  You are only given a very short period of time to provide copies of a large number of medical records.  Do not delay in getting started.  We recommend that you contact an experienced health lawyer to assist you in this right away.  In most cases, an extension of time can be requested and obtained.


Government's Expanded Use of Investigative Subpoenas.

You may receive a subpoena for medical records, bills, contracts, personnel records or many other types of documents. These subpoenas can come from the OIG, the U.S. Attorney's Office, a state Attorney General's Office or the Medicaid Fraud Control Unit (MFCU).

Under amendments to the Patient Protection and Affordable Care Act (PACA), the Medicare program has been given broader authority to investigate possible fraud and to take action to recover fraudulent payments and overpayments made to health care providers.  Under the expanded authority, the U.S. Department of Health and Human Services (HHS), it's Office of Inspector General (OIG) is issuing investigative subpoenas more than ever.

States have likewise been given broader authority to investigate and pursue Medicaid fraud and overpayments.  All states are under increasing pressure from the federal government to recover improper Medicaid payments.  We have seen an increase in our practice of health care clients receiving subpoenas from state MFCUs.

To read more on responding to an MFCU subpoena, click here.

The key to your approach to any of these is to understand that this is more serious than a mere "audit."  A subpoena usually means the existence of an ongoing case that has been opened by the government.  Although these are often investigations that may result in a civil recovery against you by the government (including damages, fines, attorney's fees and costs), they can also result in criminal charges and prosecutions.  A case that starts out civil only can turn into a criminal case.  Likewise, a case that starts out as a criminal investigation may often be diverted into a civil case with only a repayment being made.


The Most Common Reasons for Investigative Subpoenas.

The most common causes we have seen in our practice for the government opening such cases and issuing subpoenas include:

        1.    Patient complaints to the government agencies that services or products paid for were
               not delivered or that the bill was incorrect.


        2.    Disgruntled former employee filing a complaint with the OIG or state Attorney General.

        3.    Disgruntled current or former employee files a qui tam case or "whistle-blower" case
               against the employer.


        4.    You are the subject of an audit or investigation by another government agency that
               reports you for further audit and investigation.


        5.    You had a prior audit and repaid an overpayment on that audit, but continued the same
               billing practices.


        6.    You had a prior "probe audit" (usually a request for only a small number of records, such
               as five or six) and it detects what the government considers to be fraudulent billing.



What to Do When Receiving a Health Care Investigative Subpoena.

        1.    Your staff and records clerks should be educated to understand that this is not a typical
               subpoena for a medical record, a worker's comp. case, civil trial case or other such
               routine records request.  THIS IS SERIOUS.


        2.    Such subpoenas should be brought to the practice owner's attention and the practice
               manager's attention.


        3.    Retain the services of an experienced health lawyer to assist you in responding to the
               subpoena.


        4.    An experienced health lawyer may be able to:  obtain extensions of time to produce the
              documents;  help determine what the investigation is looking for;  obtain an agreement to
              narrow the scope or number of documents being produced;  and help you avoid key
              mistakes that could cause you more serious problems.


        5.   Conduct your own internal review to determine if you are billing and documenting
              appropriately.  Attempt to determine whether there are any errors being routinely made
              by your billing staff.  Often an outside consultant may be beneficial in order to have a
              fresh set of eyes look over your procedures.


To read more about the repercussions associated with not taking an audit seriously, click here.
 
 
Most Important to Remember.

You must remember that there is already an ongoing investigation.  You may be the target of the investigation, some other health care provider may be the target of the investigation, or you may potentially become a target of the investigation.  Now, while you have time, you should be getting prepared.  It is critical that you respond in a timely manner with the documents subpoenaed.


Comments?

What are your concerns about the increase of investigative subpoenas? Have you ever received a subpoena before? Please leave any thoughtful comments below.


Contact Health Law Attorneys Experienced in Handling MFCU Investigations.

The Health Law Firm and its attorneys routinely represent physicians, dentists, medical groups, clinics, home health agencies, skilled nursing facilities (SNFs), group facilities for the developmentally disabled, hospitals, and other health care providers in responding to a MFCU investigation. We also represent health providers in administrative hearings in such matters at both the federal and state levels. We have represented health providers in civil court litigation and in appeals on such matters, as well.

If you are aware of an investigation of you or your practice, or if you have been contacted by the MFCU, contact an experienced health law attorney immediately.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


About the Author:
George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.


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The Health Law Firm" is a registered fictitious business name of George F. Indest III, P.A. - The Health Law Firm, a Florida professional service corporation, since 1999.


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George F. Indest III 1/12/2015

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