By James Mackler
It is a harrowing yet increasingly common experience for healthcare providers to find themselves face-to-face with federal investigators. The U.S. Attorney’s office has announced that the investigation of healthcare fraud will continue to be one of its highest priorities. This means that you or your staff could literally have your relaxing evening at home interrupted by a knock on the door from a law enforcement agent. There are two key points to remember should you become the focus of an investigation: First, don’t talk to law enforcement agents without an attorney; second, preserve your documents but don’t alter them.
James Mackler is a member of Bone McAllester Norton’s Criminal Defense and Government Investigations group. He is an experienced criminal defense attorney and former prosecutor at the firm. James has this very simple advice for the moment you are first confronted by an investigator: “Do not talk to anyone until you speak with your own attorney.” Although this advice is very easy to give, it can be difficult to follow. Most law-abiding citizens want to cooperate with the authorities. Moreover, people tend to assume that if they refuse to answer questions, it will look like they have something to hide. This could not be further from the truth. The fact is that investigators and prosecutors respect and, to some extent, admire people who can think clearly enough to assert their right to counsel.
This is not to suggest that you should forever refuse to assist in a law enforcement investigation. The point is you need to make sure that your rights are protected. Even if you are being interviewed as a witness, there is always a chance that, as the investigation develops, a prosecutor might begin to see you as an accomplice. If you have retained counsel, your lawyer may be able to protect you ahead of time from this possibility. Although you have every right to refuse to answer questions, it is a crime to impede an investigation or lie to authorities. An attorney can also help you navigate these treacherous waters.
You may be tempted to start reviewing billing or treatment records to make sure your files are in good order in case they are ever subpoenaed. While it is fine to review your records, be careful to neither create nor destroy documents in response to an inquiry from law enforcement agents. In today’s digital age, nothing ever goes away completely. The best approach is to preserve what you have without making any changes. It is much easier for a good attorney to deal with records that might portray you in a bad light than it is to deal with allegations of evidence tampering or obstruction.
You are also likely to begin trying to figure out what is really behind the questioning. The chances are that you will be given little or no information by the investigating agent. Furthermore, the agent does not have to be truthful or forthcoming with you. You might be a potential witness or, worse, a potential target. The investigation might be civil in nature, or it might be leading toward criminal prosecution. The reality is that these distinctions don’t really matter in terms of your response.
Now if a law enforcement official shows up at your door, you have the perfect reply to the question, “Do you mind answering a few questions?”
With all sincerity, you can say, “I have no problem speaking with you, but my attorney has told me never to answer questions without talking to him first. I will get back in touch with you.”