As the government continues to crack down on fraud, healthcare providers are likely to soon become familiar – if they aren’t already – with civil investigative demands. Bill Athanas, a former federal prosecutor who is now a partner of law firm Waller, offers tips to providers on how they can potentially narrow the scope of CIDs.
“The government’s starting point is always going to be as broad as possible,” Athanas said. In its initial form, a CID will be expansive geographically, in terms of subject matter and period covered because the government doesn’t want to start small and expand later.
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“I think what oftentimes happens is a provider gets a CID, begins the process of responding to it, and then says ‘Oh my goodness. This is a monumental undertaking both in terms of the internal resources that we’re having to dedicate to this and the external cost for gathering this information,’” he said.
While providers may think that the CID they get is what they are stuck with, most of the time, they do have options, Athanas said.
Start by having a conversation with the government after receiving and reviewing a CID, Athanas said.
“Try to get to the subject matter of what the investigation is about in order to begin what is likely to be an extended dialogue about resolution,” he said.
Rather than what categories of documents the government wants, try to find out if the government really wants patient charts, or employment records or emails, for example. If the government is examining issues of medical necessity what types of procedures is the government interested in? If there are facilities in multiple states, is the government interested in one particular location?
Having a conversation allows providers to get to a root cause, and, in theory, demonstrate to the government that the real problem isn’t what the government always fears, Athanas said – a systemic plan by the provider to submit false claims.
Once there’s an understanding of what the government really wants, providers can propose an alternative plan that narrows the scope of the CID, said Athanas. For the government to consider such a plan, providers must demonstrate two things to the government, said Athanas.
The first thing providers must do is show the government specifically how much of a hardship the original CID will be on the company rather than offering generalized complaints. “That this is going to cost us a bunch of money or it’s going to take a bunch of time – that will go nowhere. The government hears those all the time,” he said. “They’re never moved by them. But if there are specific details that a provider can demonstrate about the harm that it will realize responding to the CID in its current form, they stand a much better chance of having the government be willing to negotiate a narrower form.”
The second thing providers must do is demonstrate credibility. “You have to be able to show the government that you’re taking seriously the obligations imposed by the CID,” Athanas said. That means showing the government that counsel with the appropriate experience has been retained and making sure documents that might be relevant to the investigation will be protected if the government agrees to the narrowing of its request.
“A principled approach that lets the government get what it really wants while at the same time preserving the integrity of other data that might be out there is actually in everybody’s best interests,” Athanas said, “and most experienced prosecutors recognize that and are responsive to it.”
However, be realistic, Athanas warned. Not all requests for altering CIDs will be accepted by the government, especially if the investigation is for systemic false billing or illegal conduct. “The government’s going to be skeptical in any scenario,” he said, “but the more serious the allegation, larger the amount of money and greater the geographic scope and period of time, the more difficult it’s going to be to winnow down the scope of the information that needs to be produced.”