What Do You Need to Know About Contact from a Federal Agent? What Do You Need to Know About Contact from a Federal Agent? 6

What Do You Need to Know About Contact from a Federal Agent?

David Glaser, JD

This auditing and compliance “Tip of the Week” was originally published by the National Alliance for Medical Auditing Specialists (NAMAS), a division of DoctorsManagement.

It’s Thursday night and a coder hears a knock on the door. There is a Crown Victoria (or its modern hybrid equivalent) in the driveway and a man or woman with short hair at the door. What should the coder do? Even a well-prepared person may panic when a person with a badge and gun shows up, but without preparation, a good result is unlikely. Here are some basic principles everyone should know about responding to an inquiry from a government investigator:

1. The investigator has the right to contact any employee unless the investigator knows that the employee is represented by a lawyer.

2. Individuals have the right to choose whether or not to speak with the government investigator. Employees have every right to refuse to speak with the investigator.

3. Regardless of the decision, anyone contacted by a government investigator can and should notify the organization’s Compliance Officer.

4. With one exception, the government investigator does not have the right to insist upon an interview right then and there, and it is improper for him or her to pressure you in an attempt to obtain an interview. The only exception is that some state licensing Boards can require individuals to agree to an interview. However, there is still generally time to consult with legal counsel before agreeing to any interview. Any pressure should be ignored. Whether or not to submit to an interview is an entirely voluntary decision. When someone feels that they are being pressured improperly, notify the organization’s Compliance Officer with the details. If you are contacted by the government, ask your employer to obtain counsel for you. In most cases your organization will both arrange and pay for legal counsel to assist. In many states the law requires it.

5. If you decide to refuse an interview, you should politely but firmly decline the investigator’s request. You should also ask for the investigator’s business card.

6. Since you are not required to submit to an interview, if you decide that you are willing to submit to one, you have the right to insist upon any precondition you desire. For example, you may require that the interview be conducted only in the presence of legal counsel. You may also choose a time and location that is convenient.

7. Employees often ask what they should do. They may wonder what is in their best interest and what is best for the organization. The answer should be determined on a case-by-case basis with legal counsel. If you are willing to be interviewed, it is highly advisable to have legal counsel present.

8. Under all circumstances, remember that you must TELL THE TRUTH to government agents. Usually, failure to do is, in and of itself, a violation of the law.

9. DO NOT DESTROY ANY DOCUMENTS OR ATTEMPT TO HIDE EVIDENCE. Destroying evidence is a crime. While you may believe that you are helping your organization or protecting yourself, it will cause considerable damage to the reputations of everyone involved.

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If you would like a free trifold card listing these rights and responsibilities, please send an email to [email protected] with “Agent Card” in the subject line.
This Week’s Audit Tip Written By:
David Glaser, JD
David is a shareholder in Fredrikson & Byron’s Health Care Group and co-founded its Health Care Fraud & Compliance Group. He has considerable experience in health care regulation and litigation, including voluntary disclosures, criminal and civil fraud investigations, overpayments and reimbursement disputes.

What to do next…

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