Responding to state government health care fraud investigations.

• Author: Cohen, Mitchell A.

If your practice includes the representation of health care provider clients, you should be prepared to respond to a government health care investigation. This article will help you make decisions during a government health care fraud investigation, including when and what, if any, information should be provided to the government. While there are numerous governmental agencies that regulate the health care profession, this article is directed at responding to Florida Office of Attorney General, Medicaid Fraud Control Unit (MFCU) investigations.

The MFCU performs both criminal and civil investigations of reimbursement fraud and criminal investigations regarding alleged patient abuse, neglect, and exploitation. (1) Since the practice of health law contains a myriad of statutes and regulations, it may be wise to consult a health law attorney who regularly handles compliance and fraud and abuse matters. As will be discussed, cooperating with the government beyond what is required by law can lead to disastrous results.

Many attorneys, especially those not familiar with a fraud and abuse practice, may not adequately represent their clients' interests. Often, this is because the attorney is unfamiliar with this specialized area of the law and wants to placate the prosecution or investigator, believing that "helping" the government will help his or her client. Many times, the opposite results.

In a common investigative technique, the government investigator will inform the attorney that the health care provider client is not the "target" of the investigation or that the client just needs a few or certain documents to "clear" the provider of any alleged wrongdoing. The investigator may appear friendly and cordial, and the attorney, believing that he or she is helping the client, may turn over health records or reimbursement documents. However, these documents may contain damaging information that might not have needed to be produced. Once provided to the government, these documents may be severely damaging to your client and you may have waived any available objections. Thus, it is important not to obstruct justice and, at the same time, force the government to prove its case.

MFCU Investigative Authority

The MFCU is a unit within the Florida Office of Attorney General (OAG), which has been granted statutory authority to issue investigative subpoenas and review provider records for evidence relating to Medicaid fraud and/or patient abuse-related offenses. (2) Under this authority, the MFCU may enter upon the premises of any Medicaid participating health care provider to examine accounts and records that may be relevant in determining the existence of fraud in the Medicaid program. In addition, these powers may be utilized to investigate the alleged abuse or neglect of patients, or the alleged misappropriation of patients' private funds.

A participating physician is required to make available any accounts or records that may be relevant in determining the existence of fraud in the Medicaid program, alleged abuse or neglect of patients, or alleged misappropriation of patients' private funds. (3) However, the accounts or records of a non-Medicaid patient may not be reviewed by, or turned over to the attorney general without the patient's written consent. (4) Additionally, the MFCU can subpoena witnesses or materials, including medical records relating to Medicaid recipients, within or outside the state, and through any duly designated employee, administer oaths and affirmations and collect evidence for possible use in either civil or criminal judicial proceedings. (5)

Differences Between a Subpoena Duces Tecum and a Search Warrant

Subpoenas may be issued by the MFCU attorney of record to request a witness to bring documents or materials under his or her control. However, these subpoenas are not issued by a neutral, detached judge or magistrate. MFCU subpoenas are considered investigatory subpoenas and are issued as part of an OAG investigation. Florida courts have held that a subpoena duces tecum is less intrusive than a search warrant. A person may challenge a subpoena prior to the production of documents or materials. During a subpoena service there are no...