By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law and Christopher E. Brown, J.D.
The Medicaid Fraud Control Unit (MFCU) is a division of the Florida Office of Attorney General. It is in charge of investigating and prosecuting health care providers suspected of defrauding the state’s Medicaid program. When the unit opens a case against a provider, the first step is usually the issuance of an investigative subpoena, requesting specific patient records. The practice tips below were prepared to assist a health care provider in properly responding to such a subpoena and being prepared to defend oneself.
It is important to remember that the MFCU would not be involved unless criminal fraud was suspected. This is not a routine audit.
1. Speak with an attorney experienced in Medicaid fraud and abuse prior to responding to the government’s requests.
The MFCU does not issue a subpoena without reason. It is essential that you immediately retain an attorney experienced in Medicaid fraud and abuse claims when served with such a subpoena. If retained early, an experienced health attorney can review the requested records to determine what concerns the government may have and how best to defend against them. An experienced attorney can also determine if the subpoena has been properly served and what documents will be most responsive to the government’s requests. An investigation by the MFCU is a very serious matter that can lead to both the recoupment of Medicaid reimbursements and criminal charges. Administrative action, civil action or criminal charges or all three could result.
2. Do NOT believe the government investigator is on your side.
It is not uncommon for a government investigator to notify you that the subpoena you have been served with is a routine matter and that there is nothing to fear. The investigator may also tell you that your practice is not the subject of the investigation and that retaining counsel is unnecessary. A subpoena issued by the MFCU is always a very serious matter and should always be treated as such. Remember, the investigator’s job is to build a case against you and, in our experience, the investigator will use whatever tactics are at his/her disposal to do so.
Do not be lured into the temptation to “explain” or tell “your side of the story.” You will merely be helping the government to make a case against you, one which it might not have been able to prove otherwise.
3. Provide the Medicaid Fraud Control Unit with the documents than have been requested and NOTHING more.
4. DO NOT provide the Medicaid Fraud Control Unit with your original records.
Unless required by the government, do not provide the MFCU with your original records. These investigations can often take years to reach a final resolution, and once the original records have been turned over it is very difficult to get them back. In most cases, if the government is provided with an organized paginated copy of the requested records, it will not require you to produce the originals.
5. Remember: the Medicaid Fraud Control Unit has the right to request copies of only Medicaid patient records.
As a general rule, the MFCU has the right to subpoena and review the patient records for Medicaid patients only. The records of a non-Medicaid patient may not be reviewed by the government without the patient’s prior written consent.
6. If proper and lawful, you must respond to the subpoena.
If the MFCU properly serves you with a lawful subpoena, you must produce the written records within the time prescribed. Extensions of time may be granted, but these need to be requested in advance and documented in writing. If the subpoena is not obeyed, the government will petition a court to compel compliance and you will likely have to pay the government’s attorney’s fees and costs associated with enforcing the investigative subpoena.
7. You and your employees are not required to talk with government investigators or explain the records unless individually subpoenaed.
Remember that a subpoena for records is just that, a subpoena for records. It is not a subpoena for testimonies or interviews.
After your records have been produced, it is important to remember that neither you nor your employees are required to speak with government investigators, absent a specific subpoena for this. As noted above, it is rarely advisable to volunteer information to the MFCU, and in most cases, this information will be used to build a case against you.
8. Remain patient after complying with the subpoena.
Finally, it is important to remain patient after you have submitted your records to the government for review. The MFCU investigates hundreds of cases each year, involving thousands of records. It is not uncommon for an investigation to go years without a final determination. Legal representation is extremely important at this time. The communication between your counsel and the government can make the difference between a civil penalty and criminal charges.
Contact Health Law Attorneys Experienced in Handling MFCU Investigations.
The Health Law Firm and its attorneys routinely represent physicians, dentists, medical groups, clinics, home health agencies, skilled nursing facilities (SNFs), group facilities for the developmentally disabled, hospitals, and other health care providers in responding to a MFCU investigation. We also represent health providers in administrative hearings in such matters at both the federal and state levels. We have represented health providers in civil court litigation and in appeals on such matters, as well.
If you are aware of an investigation of you or your practice, or if you have been contacted by the MFCU, contact an experienced health law attorney immediately.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
About the Authors: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
Christopher E. Brown, J.D. is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
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