We have already covered the basics of the False Claims Act (FCA), including the steep penalties for violating it. But what do you do if you learn that the government is investigating your practice for alleged false claims? What practical steps can you take to protect your practice and defend it against a possible lawsuit?
How Will You Learn About an Investigation?
Most FCA cases are complex, and it usually takes the government time to investigate before it decides whether to intervene in the case. The good news is that you will often learn about the existence of the investigation during this stage. There are a few ways that you can be alerted to its existence.
First, your practice may receive a request for documents from the government directly, often through what's called a Civil Investigative Demand (CID) from the Department of Justice. Alternatively, if an agency is investigating you, you may receive an administrative subpoena. A CID and an administrative subpoena are very similar. They define certain categories of documents that you must produce to the government and provide instructions on how to respond. You are required by law to respond to them.
Second, you may learn that current or former employees have been contacted by the government to be interviewed voluntarily.
Third, you may learn from third party (such as vendors, patients, or even other practices) that they have received a subpoena or have been contacted for an interview and that the topic of interest is your practice.
The First Steps
When you learn of a possible investigation, the first step is always to try to find out what exactly the government is investigating. Is it a coding practice? Billing for medically unnecessary procedures? The receipt of possible kickbacks for using a medical device or drug?
Hiring outside counsel is critical; this is not the time to try to navigate the situation yourself. Using outside counsel will protect the confidentiality of many communications with employees and management. Most important, outside counsel can effectively contact the government and begin a discussion about the scope of the investigation.
You will also examine the government's request for documents carefully for clues about what is being investigated. For example, if the government asks about all of the lunches, dinners, or travel you have accepted from a specific medical device company, it is likely that kickbacks are at issue. Or if the government asks for the names of all patients who have visited your practice with a specific medical complaint and the codes for which you billed them, it is likely that some sort of billing practice is of concern.