What do I do when I receive a False Claims Act Civil Investigative Demand?

Martin Merritt, JD

The False Claims Act is a federal statute dating back to the Civil War. The idea behind the statute is simply that people who do business with the federal government should not be allowed to cheat. That standard sounds simple enough, or stated another way, not a very “high bar” to meet.

However, this is the federal government, which never answers the question “is it okay to bill the government for this?” with a simple “yes” or “no” answer. The answer will more likely be, “yes, if seven other things are also true.”And in the case of physicians, those seven things must also be documented in the patient’s medical chart in order to prove “medical necessity.”

If anything is missing from the chart, then the claim could be deemed a “false claim” because “medical necessity” is a condition of payment.

The same is true with the certification of compliance with Stark law and the Anti-kickback statute. A physician’s signature on a claim contains a certification of compliance, even if the physician has no idea what Stark law might require.

The government knows this, and a hundred other traps for physicians that the OIG or DOJ could spring on anyone it chooses. Typically, however, the government uses algorithms which inform the government when “cheating” might be going on in a particular fashion that is worth looking into.

That is where a “Civil Investigative Demand” comes into play. A Civil Investigative Demand can be a demand by the United States Attorney’s office in a particular region of the country or from “Main Justice” (usually because it is from an address in Washington, although there are “main justice lawyers” assigned to other areas of the country.)

The word “civil” means that this is not a “criminal” case, although nothing precludes the government from launching both at the same time. The civil and criminal divisions of the Department of Justice also do not always agree on everything the other is doing. The criminal division sometimes believes that the civil division should take a back seat while the criminal division does its work, a view the civil division does not always share.

When you receive a Civil Investigative Demand, it is best to hire a health lawyer with experience handling these matters to help you answer them. Often, there will be a request for production of documents, interrogatories, and in some cases, as deposition may be requested.

It is not often easily determined if the person receiving the demand is the main focus of the inquiry, or simply a witness with documents the government needs in a case against a much larger target.

The worst thing you can do, perhaps short of lying to the DOJ, is to ignore a Civil Investigative Demand, hoping it will go away by itself. The DOJ doesn’t simply “give up” because you didn’t respond to the first request.

Martin Merritt is a health lawyer and health care litigator at Martin Merritt PLLC, as well as past president of the Texas Health Lawyers Association and past chairman of the Dallas Bar Association Health Law Section. He can be reached at Martin@martinmerritt.com.