Healthcare providers often seek legal counsel after having a negative or surprising experience with a regulatory agency, such as a licensing board or government oversight entity. Unfortunately, many healthcare providers learned the hard way that well-meaning comments they made or documents they provided to the government are used against them. Surprised, these providers often say that the government representative told them that they did not need a lawyer. Technically, that may be a true statement — a healthcare provider is not likely legally entitled to representation. But facing the government without the benefit of counsel is rarely a wise course of action.
Healthcare is a highly regulated industry with complex and confusing laws and regulations. There are often competing risks and benefits to different approaches, and practical solutions are not always clear. Mistakes can easily be made, and they can be costly.
An investigation or audit can come from many sources including a state’s licensing Board such as the Virginia Boards of Medicine, Nursing, Dentistry and Psychology, or from federal authorities such as the U.S. Department of Justice (DOJ), U.S. Department of Health and Human Services’ Office of Inspector General (OIG), Drug Enforcement Administration (DEA), and Federal Bureau of Investigation (FBI). Within the healthcare industry, task forces such as the Medicare Fraud Strike Force and the Opioid Fraud and Abuse Detection Unit aggressively target healthcare providers for possible missteps as well.
An experienced healthcare attorney can help you understand the process, protect your interests, and assist you in making strategic decisions. Although the initial contact may seem friendly and amicable, it is important not to be lulled into a false sense of security. The government does not have your best interests in mind; it has a different, and often adversarial mission. Do not be put at ease by an investigator’s seemingly cordial, understanding approach. It is prudent to obtain legal counsel before speaking with any investigator, no matter how friendly they seem. There can be serious consequences, including disciplinary action and civil and criminal penalties. It is important to take steps to protect yourself early in the process.
Unfortunately, many healthcare providers assume that, when faced with an investigation or audit, their best course of action is to be helpful and provide as much information as possible. Believing they have done their best and have nothing to hide, many providers believe if they cooperate the investigation will quickly reach a favorable resolution.
This is often not the case. Even well-meaning providers who have tried their best may not have complied with all governing laws, regulations, and standards of practice. And a provider might unwittingly provide the government with evidence of a violation, unnecessarily exposing themselves to greater risk. Also, information you provide which might not be carefully prepared or articulated could work against you. An attorney can advise you what documentation to produce, what information to provide, and also assist in responding to any allegations. You can contact an attorney at any point during the process, but it is usually best to talk with an attorney before you communicate with or provide any information to the government.
Some healthcare providers mistakenly treat an investigation as unimportant, presume the government agency will naturally reach the “right” conclusion, or assume the government will realize the allegations lack merit or veracity. After years of education and training to obtain a license to practice healthcare, a government investigation can put your career and reputation at risk. It is not something to be taken lightly. Responding appropriately and timely is vital. Most government agencies have detailed protocols and guidelines they follow; they rarely just dismiss investigations and go away. When faced with government action that could deprive you of your license to practice or earn a living, obtaining legal advice from a healthcare attorney can be crucial.