Conducting a Fraud Investigation, Part 2
“Taking a Common Sense Approach”
by Sean Weiss, Partner & VP of Compliance
It is the role of an investigator to gather facts and conclude whether or not fraud exists based on a scheme or intent. Within our industry, investigators must possess very specific skills including, but not limited to: revenue cycle management; coding of services; what entails various types of treatment to establish reasonable and necessary standards, etc. However, it is critical that an investigator remain open (Objective and Independent) to all possibilities and not simply rely on a medical coverage determination because precedent exists within our judicial system. As just one example of an investigation tied to filing of a false claim, we can look at the Treating Physician Rule (which recently has been challenged within the Medicare Administrative Law Judge and at the Federal level. I will address this topic in detail in a future post) which could be in direct conflict with a medical policy of a payer but, does that mean fraud was perpetrated against that payer? the Treating Physician is ultimately responsible for making the decision(s) with the patient as to what is best regarding their treatment. The first section of the Medicare statute is the prohibition “Nothing in this title shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided.” From this, one could conclude that the beneficiary’s physician should decide what services are medically necessary for the beneficiary, and a substantial line of authority in the Social Security disability benefits area holds that the treating physician’s opinion is entitled to special weight and is binding upon the Secretary when not contradicted by substantial evidence. Some courts have applied the rationale of the “treating physician” rule in Medicare cases and have rejected the Secretary’s assertion that the treating physician rule should not be applied to Medicare determinations. In Holland vs. Sullivan, the court concluded: Though the considerations bearing on the weight to be accorded a treating physician’s opinion are not necessarily identical in the disability and Medicare context, “we would expect the Secretary to place significant reliance on the informed opinion of a treating physician and either to apply the treating physician rule, with its component of “some extra weight” to be accorded that opinion, [even if contradicted by substantial evidence], or to supply a reasoned basis, in conformity with statutory purposes, for declining to do so.”
When it comes to conducting an investigation, the first step is a meeting between the investigator and the client. This meeting is used to gain perspective from the client on what they deem to be the problem and what drove them to the point of needing an investigation. During this meeting, you will gather evidence and facts to corroborate the story and may include interviews with key members of the staff or just reviewing of documents to try and determine the best course for moving the investigation forward. The most important determination that can come out of this initial meeting is whether or not the claim(s) being made have merit and good-cause for moving forward. During an investigation, the goal is to establish the basic facts but can also include searches related to assets, background checks of employees named in the complaint/accusation(s), review operational procedures including the review of policy and procedure manuals, etc. The most critical asset an investigator has is intuition and the ability to foresee potential problems arising from the investigation. If as an investigator you have any doubts regarding the merits of the claim(s) being made, the investigation should not proceed. However, if there is evidence supporting the claim(s), meaning there is evidence of fraud, then the investigation should proceed.
Gathering Evidence is essential to a successful investigation and could mean the difference between good outcomes versus an investigation that is inconclusive. During this phase of the investigation, you will begin collecting written statements and even recorded statements. Be careful here that you do not violate any state laws or do anything that could jeopardize the case such as recording someone without their knowledge unless you have been directed by an attorney that you are in a one-party state whereby you do not have to inform the other party they are being recorded. Again, I cannot stress this enough, ensure you know the laws within the state(s) you are working. The type of information you gather and the extent of the information obviously will be dictated by the complexity of the case.
The interviewing of witnesses is an area that will make or break an investigation. Conducting interviews is really an art and not an exact science. The mastery of interviewing is something that comes with years of experience. Understanding the human psyche and human tendencies as well as learning to read body language is critical to assessing an interview accurately. As I have learned over the years, it is not what a person says but more how they say it that guides me in determining if someone is being honest or fabricating their story. When I begin my investigations, I always start off with establishing the temporary relationship by introducing myself and talking a little bit about why I am there and what my goals are for the interview. Then, I raise what I consider to be nonthreatening issues to build some trust and get the individual to take down their guard so that when I begin my shift towards specific questions about the incident, the individual keeps flowing as if nothing has changed. If the individual feels like I am out to get them from the start or I begin with delving right into the questions specific to the claim(s), then their walls are up and their willingness to speak with me openly and honestly disappears. Depending on the individual and what they demonstrate as personality characteristics/traits as the interview continues and I find inconsistencies in their story, I may gently challenge those resulting in the person saying, “Let me be honest with you.” Other times, if I have a Chatty Cathy or Verbal Vomit Tommy, I tend to remain silent for periods of time to irritate or inflame the natural tension that exists. The ultimate goal at all times is to elicit responses that show the individual is either lying or withholding critical information to aid in formulating an opinion. When someone is accused of wrongdoing and they know they are guilty and they know that you know they are guilty, tensions rise and things become uncomfortable. This is why as an investigator, you always have to remain consistent with your behavior – professional, and calm – no matter how nasty the individual gets with you. However, if the interview turns threatening either verbally or physically, the interview should immediately end and you should seek the client out to make them aware of the situation.
Report writing is another area in which you need to be very careful. Make sure you provide complete thoughts and appropriately cite and source your information. Use only authoritative information, and avoid jumping around from fact-to-fact or person-to-person. When I write my reports for investigations, I create sub-headings for each topic within the body of the report. Once that is complete, I then turn my attention to filling in the factual information for each section remembering to remain laser focused on that point until the thought is complete, then I move on to the next sub-heading. Keep in mind that the report needs to identify how the fraud occurred, who participated in the scheme or scam, and what the estimated loss is to the client. If your investigation supports a criminal case, you have a civic duty to recommend involving local law enforcement. If the client ultimately determines police involvement is warranted, you may be asked to participate in that discussion with local law enforcement. When I am done with my first draft, I then go back and create a table of contents based on each sub-heading. Within my report, I do not render an opinion until the conclusion paragraph because I don’t want the reader to miss critical facts or admissions made during the interview. My conclusions are always stated from the perspective of “Based on all of the evidence provided and facts uncovered during the investigation, I am able to conclude…” It is not an investigator’s job to determine someone’s guilt or innocence but rather to determine whether or not fraud was perpetrated and what evidence and facts drove you to that conclusion. Determining guilt or innocence is up to a court of law. Remember, when you conduct an interview remain objective and keep in mind that our legal system is based on the presumption of innocence. A person is innocent until proven guilty in a court of law by one’s peers. The final thing to remember about your report is to Watermark it as “Draft” or however the attorney directing the investigation requests it to be marked. Following these simple process steps should ensure a professional outcome of your investigation.