Civil Investigative Demands: How to Respond Compliantly

Civil Investigative Demands: How to Respond Compliantly

Mergers and acquisitions in healthcare markets are viewed with heightened scrutiny by the Federal Trade Commission (FTC) and U.S. Department of Justice (DOJ) Antitrust Division. These transactions may require further investigation to determine whether there will be anticompetitive effects, such as higher prices, in the affected market.

As part of these investigations, the DOJ may issue civil investigative demands (CIDs) for documents and statements from third parties that do not have direct involvement in the transaction. The CID process can become a protracted and expensive undertaking if it is not properly managed from the outset by experienced counsel. I would like to offer guidance on how to effectively respond to CIDs in connection with the False Claims Act (FCA) enforcement process.

Currently, I have 5-6 CIDs active. Some are criminal, some are civil. I think of criminal and civil being two separate and individual trains on a track. All investigations start on the civil train. The goal is to stay on the civil train. No one wants to go on the criminal train. The criminal train always fails to “Pass Go!” Do not pass go. Go directly to jail.

However, if you receive a CID, do not freak out. You just need to respond. You can get extensions to deadlines if needed. Like I said, all CIDs start civil. Hence the name, civil investigative demand. Generally, it takes time for the civil investigation to morph to criminal. This is a generalization – but, the more time passes, the more likely it is to transform into criminal. On the civil side, the False Claims Act, the Anti-Kickback Statutes, and the Health Insurance Portability and Accountability Act (HIPAA) are the legal tools the state or federal government may wield.

Many of the CIDs I have seen cover dates of service (DOS) during COVID-19. Because so many exceptions were issued on the federal and state level during the pandemic, these are low-hanging fruit. Providers who took any money during COVID: you have a target on your back, and you are in season, as they say about deer.

Pursuant to the authority at 31 U.S.C. § 3733, the Attorney General, or an appropriate designee, may issue a CID if there is reason to believe that a person or entity is in possession of documents or information relevant to an FCA investigation. Under this authority, the DOJ can use CIDs to demand the following:

  • Documents and electronically stored information;
  • Written interrogatory responses; and
  • Sworn testimony, including “corporate representative” testimony (akin to Rule 30(b)(6) depositions).

CIDs advance the government’s ability to investigate FCA cases by obtaining significant discovery before litigation has even started. The government typically issues CIDs after a qui tam suit has been filed under seal or after a case has been referred to DOJ by another government agency, such as an investigating agency or an Office of Inspector General (OIG). This process advances the DOJ’s ability to evaluate the merits of an FCA case before deciding whether to go “all in” on a specific case.

A civil or criminal investigative demand is similar to a subpoena. If you receive a demand for jury duty, a subpoena, basically anything issued by a court, if you refuse to comply, you go to jail.

How do you keep your investigation on the civil train?

Well, that depends.

If you are innocent and have nothing to hide, then show what you have.

Print Friendly, PDF & Email
Facebook
Twitter
LinkedIn

Knicole C. Emanuel Esq.

For more than 20 years, Knicole has maintained a health care litigation practice, concentrating on Medicare and Medicaid litigation, health care regulatory compliance, administrative law and regulatory law. Knicole has tried over 2,000 administrative cases in over 30 states and has appeared before multiple states’ medical boards. She has successfully obtained federal injunctions in numerous states, which allowed health care providers to remain in business despite the state or federal laws allegations of health care fraud, abhorrent billings, and data mining. Across the country, Knicole frequently lectures on health care law, the impact of the Affordable Care Act and regulatory compliance for providers, including physicians, home health and hospice, dentists, chiropractors, hospitals and durable medical equipment providers. Knicole is partner at Nelson Mullins and a member of the RACmonitor editorial board and a popular panelist on Monitor Monday.

Related Stories

Leave a Reply

Please log in to your account to comment on this article.

Featured Webcasts

2024 Observation Services Billing: How to Get It Right

2024 Observation Services Billing: How to Get It Right

Dr. Ronald Hirsch presents an essential “A to Z” review of Observation, including proper use for Medicare, Medicare Advantage, and commercial payers. He addresses the correct use of Observation in medical patients and surgical patients, and how to deal with the billing of unnecessary Observation services, professional fee billing, and more.

March 21, 2024
Top-10 Compliance Risk Areas for Hospitals & Physicians in 2024: Get Ahead of Federal Audit Targets

Top-10 Compliance Risk Areas for Hospitals & Physicians in 2024: Get Ahead of Federal Audit Targets

Explore the top-10 federal audit targets for 2024 in our webcast, “Top-10 Compliance Risk Areas for Hospitals & Physicians in 2024: Get Ahead of Federal Audit Targets,” featuring Certified Compliance Officer Michael G. Calahan, PA, MBA. Gain insights and best practices to proactively address risks, enhance compliance, and ensure financial well-being for your healthcare facility or practice. Join us for a comprehensive guide to successfully navigating the federal audit landscape.

February 22, 2024
Mastering Healthcare Refunds: Navigating Compliance with Confidence

Mastering Healthcare Refunds: Navigating Compliance with Confidence

Join healthcare attorney David Glaser, as he debunks refund myths, clarifies compliance essentials, and empowers healthcare professionals to safeguard facility finances. Uncover the secrets behind when to refund and why it matters. Don’t miss this crucial insight into strategic refund management.

February 29, 2024
Mastering Medicare Notices: Your Essential Guide to the MOON and Beyond

Mastering Medicare Notices: Your Essential Guide to the MOON and Beyond

Hospital staff continue to grapple with the complexities of Medicare notices.  In this webcast, Tiffany Ferguson, LMSW, CMAC, ACM, will present the latest requirements for preparation and delivery of CMS-mandated forms, including the Advance Beneficiary Notice (ABN), Hospital-Issued Notices of Noncoverage (HINNs), Important Message from Medicare (IMM) and Medicare Outpatient Observation Notice (MOON), and practical solutions through foolproof workflows and compliance auditing.

January 25, 2024
OBGYN ICD-10-CM/PCS Coding: Mastering Complex Guidelines and Compliance

OBGYN ICD-10-CM/PCS Coding: Mastering Complex Guidelines and Compliance

Dive into the complexities of Obstetrics and Gynecology coding, addressing challenges from antepartum to postpartum care. Learn to decode intricate guidelines, tackle claim denials, and safeguard your practice’s financial health. Uncover the secrets to compliant coding, reducing errors, and optimizing reimbursement. With practical exercises and expert insights, this webcast empowers coders, auditors, and healthcare professionals to elevate their OBGYN coding prowess.

February 28, 2024
Unlocking Clinical Documentation Excellence: Empowering CDISs & Coders

Unlocking Clinical Documentation Excellence: How to Engage the Provider

Uncover effective techniques to foster provider understanding of CDI, empower CDISs and coders to customize their queries for enhanced effectiveness, and learn to engage adult learners, leveraging their experiences for superior learning outcomes. Elevate your CDI expertise, leading to fewer coding errors, reduced claim denials, and minimized audit issues.

December 14, 2023
Coding for Spinal Procedures: A 2-Part Webcast Series

Coding for Spinal Procedures: A 2-Part Webcast Series

This exclusive ICD10monitor webcast series will help you acquire the critical knowledge you need to completely and accurately assign ICD-10-PCS and CPT® codes for spinal fusion and other common spinal procedures.

October 26, 2023

Trending News

It’s Heart Month! Use code HEART24 at checkout to receive 20% off your cardiology products. Click here to view our suite of Cardiology products!