While the receipt of a government subpoena or an in-person visit by government investigators can be a deeply unsettling experience, failing to properly respond to these government investigations can be far worse for both the company and the individuals involved in preparing the response.
While many healthcare investigations are initiated at the federal level either by the Federal Bureau of Investigation or the Office of Inspector General of the U.S. Department of Health and Human Services, it is important to remember that there are more than 300 federal agencies alone with administrative subpoena power. In addition, most states also have specialized divisions within their state attorney general’s office that conduct healthcare fraud and/or compliance investigations. The healthcare industry also has to deal with a number of private, non-governmental entities, such as zone program integrity coordinators and recovery audit contractors, which have congressionally delegated authority to initiate document requests and investigations (though these are usually limited in scope).
What to do
You’ve just received a government subpoena. Now what?
After receiving a government subpoena, it is important to determine what the government actually wants. Most subpoenas contain a section just under the recipient’s name that states “YOU MUST PRODUCE” and a section that states “YOU MUST TESTIFY.” Either one or both of these sections will contain an “X,” indicating what is required and will also announce the date on which compliance is required.
Once your initial review of the subpoena is complete, it is usually worth having your counsel call the government lawyer or agent whose name is listed on the subpoena. The most important question is whether your company is a target of the investigation or a third-party witness. Unfortunately, the government is often unwilling to divulge this information during its investigative process, so, it is generally safest to assume your company is or may become a potential target.
The preliminary call also provides an opportunity to establish a good rapport with the government lawyer and to express the company’s desire to comply to the best of its ability with the subpoena. This is also a good time to ask for an extension or a rolling production, if it appears unlikely that the company can comply with the (usually short) timeline for a response. As the government’s initial document requests are often very broad in both time and scope, this initial call is also a good time to broach narrowing the subject matter of the subpoena. Proper handling of the initial contact is critical, especially when the potential for criminal charges exists.
After determining the source and scope of the subpoena, there are several necessary steps that must be quickly taken to protect the company.
- Immediately suspend routine document destruction and automatic data deletion procedures.
- Consider whether to capture data from phones and other devices.
- Consider whether prior or departing employees may have responsive information.
- Talk to the government before distributing preservation notices.
- Consider conducting an internal investigation.
If you decide to conduct an internal investigation (which is particularly important in dealing with internal whistleblower complaints), the first question is whether to use in-house or outside counsel. Making this determination will vary by situation. Three significant factors that assist in determining whether independent outside counsel is required include:
- The seriousness of the alleged conduct and the possible risk exposure;
- The seniority and positions of any individuals who may have been involved in the conduct under investigation; and
- The connection between the investigating lawyer and witnesses. Assess whether the potential witnesses include people the investigating counsel regularly interacts with, reports to, or someone who might otherwise have even a perceived influence on the independence of the investigation. The possibility of a close relationship between lawyer and witness is particularly important in light of the Yates Memorandum’s (the “Yates Memo”) increased focus on investigating and prosecuting individuals.[i]
Once you have embarked on an internal investigation, there are additional steps that should be taken and certain pitfalls that should be avoided whenever a company conducts an internal investigation.
- Provide Upjohn or corporate Miranda warnings to witnesses.[ii]
- Consider any mandatory reporting deadlines implicated by the type of alleged misconduct.
- Consider potentially voluntarily self-reporting potential misconduct or adverse findings.
- Discuss privilege early and often.
- Prepare for the unexpected.
- Hold group meetings with potential witnesses.
- Withhold non-privileged materials simply because they appear unfavorable.[iii]
Government agents are in your lobby. Now what?