2. Do not shred documents that you now suspect are incriminating.

Although it seems counterintuitive, do not commence a shredding campaign. Providers often fail to realize that patients’ files are often the “crime scene”. By the time you either are made aware of or suspect that you are a target, the incriminating documents are in the investigators’ hands.

3. Determine whether you are a “target” or a “subject” of an investigation.

Frequently, investigators are working closely with prosecutors months, if not years, prior to identifying the “target” of an investigation. If you are a “subject” of such an investigation, this suggests either that the investigation is in an early stage, i.e., information-gathering, or you are a conduit to the “target”. If you are a “target,” seek consultation with someone knowledgeable in health care law without delay.

4. If possible, obtain affidavits from employees.

Hire an outside attorney for this process. The purpose is to identify potential problems that may have triggered the investigation. If possible, make no changes in office procedures. Frenzied changes in policies and procedures make fraud investigators suspicious of illegal activity. Insurance carriers are suspicious of you because you are a healthcare provider. How do you know if you need to change either a policy or procedure? If it is merely a preference, don’t change it. If a change is indicated by statute, rule, or clearly established guidelines, document the date on which you were made aware of the necessary change and make the change effective immediately. Never back-date.

For example, a “peer reviewer” reports that, as a chiropractor, you are required to bill for chiropractic manipulative therapy (”CMT”) when you documented, performed, and billed for spinal manipulation. The “peer reviewer’s” preference requires no change. However, if you find that an adminstrative agency (e.g., Workers’ Compensation) has adopted a rule that requires you, as a chiropractor, to bill for CMT when billing for spinal manipulation, and you find that you have been billing incorrectly, document the date on which the information was brought to your attention and bill appropriately from that date forward. This action will reduce future liability.

5. Do not dismiss employees if they express concerns regarding current operations.

Employee-candor is desired. “Whistle-blower” violations will only compound an already complex case. Prosecutors will readily take notice if such violations appear to have occurred. Furthermore, now the aggrieved employee has a monetary inducement to make your life miserable (i.e., percentage of amount recovered).

6. Request an opportunity to review all evidence of the alleged fraud.

Frequently, the provider erroneously thinks that those snide comments that so-called “peer-reviewers” make merely give insurance carriers justification to deny payment for services rendered. What providers do not realize is that every time a “peer-reviewer” opines that the service was “medically unnecessary,” excessive,” etc., the insurance carrier is adding another piece of evidence to a potential faud case against you.

7. Assume every conversation you have with an insurance adjuster is recorded.

Staff training and proper phone etiquette are critical here. It is seldom beneficial to engage in phone wars with either insurance adjusters or “peer reviewers”. If their minds can be changed by what you say, you won’t have to engage in a phone war. If they aren’t interested, all of the shouting in the world won’t change their minds, and you are susceptible to misstatements.

8. Understand established coding procedures

This is particularly important if the issue is fraudulently billing for services rendered. Do not permit yourself to be pigeonholed into accepting the insurance adjuster’s interpretation of a code. Unfortunately, many know less than the provider and, if the adjuster’s incorrect, you still have a problem.

9. Do not make the mistake of retaining just any attorney.

Healthcare law is very complex. Stakes are extremely high and you are opposed either by the government or a multi-million, if not multi-billion, dollar foe. The government becomes more sophisticated with each passing year, creating health care fraud task units, etc. Insurance carriers often have the luxury of having attorneys who do nothing but health care fraud cases. Knowledge is key. So find an attorney that not only has healthcare experience, but also billing fraud defense experience. In a criminal case, it is beneficial to deal with an attorney who is experienced in working with prosecutors and investigators.

10. Be as cooperative as is reasonably possible.

Occasionally, such investigations arise over relatively innocent misunderstandings. You must know the difference between stonewalling and asserting justifiable defenses. Stonewalling only prolongs the agony.