Responding to a Medicaid Fraud Control Unit Investigative Subpoena
Monday, March 5, 2012
The Medicaid Fraud Control Unit is a division of the Florida Office of the Attorney General charged with investigating and prosecuting health care providers suspected of defrauding the state's Medicaid program. When the unit opens a case against a provider, the first step is usually the issuance of an investigative subpoena, requesting specific patient records. The practice tips below were prepared to assist a health care provider in properly responding to and defending against such a subpoena.
1. Immediately contact an attorney knowledgeable in Medicaid fraud and abuse prior to responding to the government's requests.
The Medicaid Fraud Control Unit does not issue a subpoena without reason. An investigation by the Medicaid Fraud Control Unit is a very serious matter that can lead to both the recoupment of Medicaid reimbursements and criminal charges. It is essential that you immediately retain an attorney experienced in Medicaid fraud and abuse claims when served with such a subpoena. If retained early, an experienced health care attorney can review the requested records and determine what concerns the government may have and how best to defend against them. An experienced attorney can also determine if the subpoena has been properly served and what documents will be most responsive to the government's requests.
2. The Medicaid Fraud Control Unit can only subpoena and seize the records of Medicaid patients.
The Medicaid Fraud Control Unit has the right to subpoena and review the patient records for Medicaid patients only. The records of a non-Medicaid patient may not be reviewed by the government without the patients's prior written consent.
3. The government investigator is not on your side.
It is not uncommon for a government investigator to notify you that the subpoena you have been served with is a routine matter and that there is nothing to fear. The investigator may also tell you that your practice is not the subject of the investigation and that retaining counsel is unnecessary. A subpoena issued by the Medicaid Fraud Control Unit is always a very serious matter and should be treated as such. Remember, the investigator's job is to build a case against you and, in our experience, they will use whatever tactics are at their disposal to do so.
4. DO NOT provide the Medicaid Fraud Control Unit with more documents than have been requested.
It is almost never advisable to provide the Medicaid Fraud Control Unit with more documents than requested in the subpoena. Providing the government investigator with additional information beyond what was requested will only provide the government with more evidence to use against you at a later date.
5. DO NOT provide the Medicaid Fraud Control Unit with your original records.
Unless required by the government, do not provide the Medicaid Fraud Control Unit with your original records. These investigations can often taken years to reach a final resolution and once the original records have been produced it is very difficult to get them back. In most cases, if the government is provided with an organized bates stamped copy of the requested records, they will not require you to produce the originals.
6. If proper and lawful, you must respond to the subpoena.
If the Medicaid Fraud Control Unit properly serves you with a lawful subpoena, you must produce the written records within the time prescribed. If the subpoena is not obeyed, the government will petition the court to compel compliance, and you will likely have to pay the government's attorney's fees and costs associated with enforcing the investigative subpoena.
7. Your employees are not required to speak with government investigators unless subpoenaed.
After your records have been produced, it is important to remember that neither you nor your employees are required to speak with government investigators, absent a subpoena. As noted above, it is rarely advisable to volunteer information to the Medicaid Fraud Control Unit, and in most cases, this information will be used to build a case against you.
8. Remain patient after complying with the subpoena.
Finally, it is important to remain patient after you have submitted your records to the government for review. The Medicaid Fraud Control Unit investigates hundreds of cases each year, involving thousands of records, and it is not uncommon for an investigation to go years without a final determination. Legal representation is extremely important at this time, as the communications between the your counsel and the government can make the difference between a civil penalty and criminal charges.
For more information on the Medicaid Fraud Control Unit and Medicaid audits, please visit our website at www.TheHealthLawFirm.com.
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