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TIPS FOR INTERNAL AND EXTERNAL INVESTIGATIONS

Mark Borreliz, Counsel, Verrill Dana, LLPBrian French, Partner, Nixon Peabody, LLP Kristen Roy, Chief Compliance & Privacy Officer, Elliot Health System

AGENDA

Overview of Investigations: In-House Perspective Internal Investigations External InvestigationsGovernance

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OVERVIEW OF INVESTIGATIONS: IN-HOUSE PERSPECTIVE

OVERVIEW OF INVESTIGATIONS: IN-HOUSE PERSPECTIVE

Start of Investigation – what is the reason for the investigation?

Internal/External Investigation (examples) Internal: Compliance Hotline, Employee

Complaint, Patient Complaint, Internal Discrepancy/Issue

(billing) External: Government –State/Federal, Commercial Payer

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IMMEDIATE CONSIDERATIONS

Potential Whistleblower involved? Retaliation considerations Follow internal Policies and Procedures (e.g.,

Investigations Policy) Anonymity Determine which laws, rules, or policies apply Documentation of allegation/issue

- Document management system - Consider confirmatory memo

Notification to individuals/entities

WHEN TO INVOLVE LEGAL COUNSEL: CONSIDERATIONS

Sensitivity of matter Desirability of attorney-client privilege Seriousness of legal or regulatory violation

alleged Involvement of senior management or board

members Best practice: Involve legal counsel early (even

if only consultation) Tip: Advise legal counsel to send out

investigation memo to all persons who will be involved in the investigation

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OPERATIONAL ISSUES

Who belongs at the table? Every issue will be different.

Who will investigate? You should develop a plan of action for the investigation.

Resources. What resources will you need to solve the issue?

Understanding the root cause of the problem. Is there a technical fix that needs to be made?

Process of investigation should follow the organization’s mission, values, and principles. (e.g., Just Culture)

PRACTICAL TIPS

Educate and train internal staff frequently on what to expect when there is an investigation

Remind internal staff to refer to internal Investigation Policies and Procedures. If no internal policies exist, create them

Create an Investigation Checklist when you learn of the allegation/issue

Circulate Investigation Memo to all persons involved. Continue to remind internal staff of the importance of this memo.

Time is of the essence for some investigations. Example: 60-day overpayment rule

Documentation is critical.

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INTERNAL INVESTIGATIONS

FACT-GATHERING: A REFRESHER FOR INTERNAL INVESTIGATIONS

Gathering documentsDigital evidenceDealing with witnesses

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WHO NEEDS A REFRESHER?JUST ABOUT EVERYONE

DOCUMENTS AND PHYSICAL EVIDENCE Identify relevant documents: what might exist, who would

have it, who has copies? (authors; recipients; custodians; central files; archives)

Collect and preserve: notice to employees; document holds; suspension of automatic storage/shredding timetables

Protect integrity of documents: store originals and work with duplicates; create inventory; maintain access log

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DIGITAL DOCUMENTS & DATA

Identify/isolate computer files you control (central servers, desktops and laptops, flash drives, etc.

Access to devices owned by employees is more problematic unless can show work use

Drives should be imaged/copied Don’t lose or destroy data: can issue “document holds” for

electronic documents, too; turn off automatic deletion programs

Consider digital forensics experts; not every IT employee knows how to inspect or copy digital devices without altering or losing data

DEALING WITH WITNESSES: BEFORE THE INTERVIEW . . .

Know the case/problem and where the witness fits in: what do you hope to learn from this witness?

Know the witness: do your due diligence (performance evaluations, interactions with other key actors, online research, etc.)

Plan the interview conditions: site; witness; notes vs. recording

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CONDUCTING THE INTERVIEW

Orienting the witness: purpose of interview; duty to cooperate; truthfulness instruction; Upjohn warning (if you’re a lawyer)

Questioning manner and techniques (usually)

- Set the witness at ease- Be respectful, receptive, and firm- Give the witness space – use silences- Use open-ended questions

Closing the interview: confidentiality request; retaliation warning (if applicable); hold open the channels for further communication

COMMON MISTAKES (AND WE ALL MAKE THEM)

Furnishing or finishing the witness’ answer

Not recognizing new lines of potentially productive questioning

Losing sight of the objective

Stopping too soon; not finishing the job

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EXTERNAL INVESTIGATIONS

RESPONDING TO GOVERNMENT INVESTIGATIONS: OVERARCHING PRINCIPLES Immediately involve in-house or outside counsel Never impede or obstruct an investigation, such as

concealing, deleting or destroying potentially relevant documents – such conduct may result in criminal liability

Be truthful in statements to the government – failure to do so may result in criminal liability

Proceed in good faith and with appropriate transparency

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HOW DO PROVIDERS LEARN OF INVESTIGATIONS?

Search warrant Grand jury subpoena HIPAA subpoena OIG subpoena Civil Investigation Demand (CID) Letter request for information Contact by government agents with current or former

employees

HOW DO PROVIDERS LEARN OF INVESTIGATIONS?

Search warrant Grant jury subpoena HIPAA subpoena OIG subpoena Civil Investigation Demand (CID) Letter request for information Contact by government agents with current or former

employees

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START OF GOVERNMENT INVESTIGATION

Complaint to MAC, ZPIC, OIG, FBI, Medicaid Fraud Control Unit, State AG, USAO

Proactive data mining Qui tam complaints Competitor complaints Industry wide investigations News reports

IMPORTANCE OF INTERNAL INVESTIGATION

Get ahead of the government on the facts

Accurately understand the nature and extent of risks and exposure

Stop improper conduct and prevent from recurring

Identify and isolate the sources of, and reasons for, improper activity – who was involved and who wasn’t

- Yates Memo and cooperation credit

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PROACTIVE UNDERSTANDING OF HOW GOVERNMENT PERCEIVES CERTAIN ISSUES

Increased willingness to wade into medical necessity determinations – adequacy of medical records becomes critical

“Pressure” to meet budgetary or productivity goals or targets Who receives financial incentives and how are they

structured? Effectiveness of provider compliance programs and actions

taken in response to identified issues

IMPORTANCE OF INTERNAL INVESTIGATION

Develop exculpatory information – cooperation and advocacy are not mutually exclusive

Provide realistic assessment of the facts and exposure for management and governing board consideration

Provide credible and accurate disclosures to the government, including information government may not have developed on its own, as well as positive information for the organization

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GOVERNANCE

GOVERNANCE CONSIDERATIONS

Determine what reports need to be made and to whom. Be prepared to answer the basic questions – Who? What? When? Where? How? Why?

The type of reports will vary depending on the audience. Reports may be made to the following:

- Internal Compliance Committee- Internal Finance Committee - Board Compliance Subcommittee - Board Finance Subcommittee - Full Board of Directors

If an investigation is under the attorney-client privilege, coordinate the reporting along with outside or in-house lawyer

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TIPS WHEN REPORTING TO GOVERNING BOARDS Timing of Report Matters.

- Do you report when you learn of the issue or wait until the investigation is complete?

ANSWER: It Depends Corrective Action Plans are very important. Committees/Board

Members want to know how we can prevent the issue from occurring in the future

Consider implementing Policy and Procedure for conducting Internal and External Investigation and include .

If billing or high risk issue Include in Audit Work Plan for next quarter/year

Consider implementing a document management system to track investigations and run automatic reports

QUESTIONS?

Mark Borreliz, Counsel, Verrill Dana, LLP [mborreliz@verrilldana.com]Brian French, Partner, Nixon Peabody, LLP [bfrench@nixonpeapody.com]Kristen Roy, Chief Compliance & Privacy Officer, Elliot Health System [kbroy@elliot-hs.org]