At Joseph Potashnik and Associates, PC we provide competent and aggressive representation of healthcare professionals in New York and nationwide in matters involving government investigations and criminal prosecutions.

Healthcare providers are subject to a wide variety of government regulations and laws, both on the state and the federal level. Providers may be investigated for potential violations involving issues such as fraud, controlled substances, illegal hiring practices, and other concerns. Investigations may be initiated by one or more agencies, including the FBI, the U.S. Department of Justice, the Drug Enforcement Administration (DEA), the state Attorney General, the District Attorney, the Medicaid Fraud Control Unit, or the Department of Health. Furthermore, there are a number of non-criminal investigations conducted by the healthcare regulatory agencies such as the Centers for Medicare and Medicaid Services (SMS), its program integrity and safeguard contractors, and the Office of Inspector General of Health and Human Services (OIG-HHS).

Some investigations have two or more state and federal agencies cooperating with one another. The one thing that all healthcare investigations have in common is that they all involve potentially devastating consequences to the provider.

What Triggers Health Care Fraud Investigations

Many healthcare fraud investigations may be triggered as the result of a Medicare intermediary or carrier audit, OIG or government contractor review, random audits, whistleblower and patient complaints, and even competitor’s complaints. The government often uses informants and undercover agents in the course of their investigations.

Once the investigation is underway, the government will collect information using all available methods including subpoenas, search warrants, and electronic surveillance.

In order to successfully navigate an investigation, it is important to be informed about the protocols of the investigating agency, its authority, and the proper way to respond. A provider who faces an investigation may think that they can handle it on their own. However, even providers who think that they did nothing wrong, or that the investigation was based on a misunderstanding or an easily-corrected error can end up facing severe penalties if the investigation is not handled properly. It is best to immediately consult an experienced law firm which is able to find the best approach to dealing with an investigation so as best to protect the provider’s rights.

Providers should also be aware that evidence obtained or statements made during one investigation may be used as evidence in an investigation by other agencies such as state disciplinary boards. Many such agencies offer the provider the opportunity to appear at an interview. Do not be fooled by the seemingly casual language; such interviews are often conducted under oath and all statements will affect the outcome. While the degree of formality varies, all interactions with investigating agencies should be understood to be serious and should not be entered into without legal representation.

Each organization should have an established protocol for handling government investigations. The safest way to act is to refer the agents to the person who serves as the designated contact within the organization, who will immediately notify the company’s attorney.

Another issue that should be addressed is document retention and litigation hold policies. If a provider fails to preserve, locate, and disclose certain documents, it can face enhanced penalties and judgments.

In the course of an investigation, the provider will typically be presented with demands for testimony or records. Do not produce any materials without consulting your attorney who can advise you as to the best course of action. Do not assume that agencies necessarily have a right to the materials they demand. Some providers believe that enthusiastically turning over all available information, asked for or not, will be a convincing display of good faith that will induce investigators to reach favorable conclusions. In many cases, however, such an action will provide additional ammunition for investigators who are disposed to view it as negatively as possible.

On the other hand, undue delays and failure to produce material can result in charges of obstructing the investigation. If you are faced with a subpoena or other document requesting or demanding materials, speak with an attorney at once to determine your rights and obligations. Retaining the services of an experienced law firm is the best way to help you protect your rights without crossing the line into obstructionism on one hand and volunteering potentially damaging information on the other hand.

At times, a provider facing an investigation will panic and take ill-advised steps, such as ignoring the investigation, trying to hide documents, or attempting to falsify records. These moves will only result in additional charges, or even in a criminal case where an investigation would have revealed no other wrongdoing. If you are concerned that there may be records that create an unfavorable impression, discuss this issue with your attorneys.

At the conclusion of an investigation, criminal charges may be brought if evidence is found to support them. In addition to penalties that include fines and loss of freedom, providers who are convicted of a crime face severe professional consequences, including the permanent loss of their healthcare license or exclusion from the Medicaid and Medicare programs. Each stage of the process, including the investigation, is important and can affect the ultimate outcome. Retaining an experienced healthcare defense attorney as soon as possible will help you achieve the best results that are possible for your individual circumstances.

If you are aware of any facts that may affect the investigation and the criminal prosecution, be sure to discuss them with your attorneys so that they can devise the best strategy for handling them.

Prosecutors may offer you a settlement that will involve pleading guilty to a lesser charge. Not every plea offer represent your best interests.  Our job, as your attorneys, is to protect you against the potentially devastating consequences of a criminal conviction and advise you as to the best course of action.

Our experienced attorneys have represented numerous healthcare providers in the course of investigations from a variety of federal and state agencies, as well as all stages of criminal prosecution. We use our knowledge of the relevant laws and regulations, as well as our expertise in dealing with investigators and prosecutors, to protect your rights to the fullest extent.