When an official acting on behalf of a government agency contacts a medical practice, it can be a daunting, even frightening experience-one that requires knowledge of your rights and what you must and should do.
Know your rights
Unless the agent has a search warrant, you also have the right to have your lawyer review any documents before the agent can see them. If the agent has a subpoena, a civil investigative demand, or even a document requiring you to provide "immediate access" to records, you have 24 hours to produce the information. Unless the document says "search warrant," you should confer with legal counsel before providing anything.
Be on your guard
Second, verify that the investigator is who he says he is. Ask to see a badge and a business card, which are the essential credentials that every government investigator must have and which you should examine before meeting with any investigator. If you have any doubt, make a call to the headquarters of whichever agency the investigator claims to be from. Glaser points out that a business card alone is not adequate for authentication.
Third, be aware that investigators use various subterfuges and cunning to entice you to answer their questions without an attorney present. They may offer, "If you didn't do anything wrong or you are innocent, then you have nothing to fear." Glaser advises that if an investigator is from the Office of the Inspector General or the FBI, you should politely but firmly decline the investigator's request and consult with a health care attorney who has experience in protecting doctors from unlawful investigations. You can ask for a delay until you have arranged for counsel, and you also have the right to insist on any other precondition you desire. For example, you can determine the time and place for the interview.
Glaser notes that an attorney is present during interviews to be sure your story is accurate and consistent; he or she can assist with the gathering and organization of facts, as well as the presentation of those facts in a way that puts you in the most favorable position. An attorney can also help verify that the agent accurately transcribes events into his official report. If you are an employed physician, your employer will usually pay for the cost of an attorney to represent you, provided you arrange for it in advance. It is important to notify your employer about the government contact and request for an investigation.
Some investigators may attempt to interview employees of the practice. Glaser emphasizes that it is imperative to train your employees about how to handle contact from the government before any investigation takes place. Most employees will not have any skills or experience in dealing with an investigation. Most government investigators will contact your employees at their home, in the evening, when they don't have the support of their doctors or office managers. It is imperative that your employees know that they don't have to speak to investigators. Glaser recommends that the employee ask for a business card and state that she will get back to the investigator. Then, the employee should make a phone call to the physician(s) and office manager.
The practice should have a plan in place, such as a phone tree, so that should an investigator contact a practice employee, the whole staff is notified as soon as possible; Glaser cautions that if one person is contacted, it is highly likely that other employees will also be contacted. The phone tree then alerts the other employees that they may be contacted. It is important that any training on this subject includes reassurance that the employer will cover staff members' legal fees when counsel is retained.
Bottom line: A visit from a government official is often a frightening experience for a physician and his or her staff. However, following a few guidelines and suggestions and retaining good legal counsel can make the experience less daunting.
Dr. Baum is a urologist in private practice in New Orleans. He is the author of Marketing Your Clinical Practice-Ethically, Effectively, and Economically.
Dr. Dowling is medical director of Urology Associates of North Texas, a 48-physician, community- based, single-specialty group in the Dallas-Fort Worth metroplex.