The Civil Investigative Demand Process
Civil Investigative Demands (CIDs) are subpoena-like notices issued by government investigators to collect evidence, documentation, and information for use in federal civil investigations, including violations of the federal False Claims Act (FCA).
Frequently used by the federal government, CIDs are powerful, pre-litigation tools that can be broad, invasive and time-consuming for medical professionals that are targeted, or somehow connected to an individual or entity that is a target. They also raise serious concerns for impending health care fraud investigations and liability to civil or criminal penalties.
Because of the serious implications, evaluating and responding to a civil investigative demand becomes pivotal to the case and outcome. Physicians, medical professionals or other health care entities involved must carefully evaluate the demands, measure their response, protect their rights, and take practical steps in reducing the scope of a potential health care fraud investigation or worse – violation or recoupment of payments.
At Hendershot, Cowart & Hisey, P.C., our Houston-based healthcare law attorneys have extensive experience representing health care providers and companies that have received Civil Investigative Demands. We prioritize timely action to formulate a response plan, walking our clients through the entire process, which includes:
- Defining the Scope – Civil Investigative Demands can be immensely broad in the documentation federal regulators seek. These may include documents pertaining to company records, financials, marketing agreements, physician relationships, and medical records. CIDs may also require responses to interrogatory responses and /or depositions. With the assistance of an attorney, assessing the scope of information sought is vital to formulating a response plan.
- Establishing Credibility – Companies need to establish credibility with government investigators who have enough cause to initiative investigations over possible wrongdoing and the power to make concessions, and to avoid mistakes that can negatively impact the company’s status as viewed by investigators. This means expressing a commitment to cooperate and take the investigation seriously, taking steps to preserve documentation and prevent potential responsive materials from being altered or destroyed (as failures to provide information may be interpreted as deliberate attempts to impede an investigation), make employees available for interviews, and respond promptly to inquiries.
- Developing Dialogue with the Government – Opening a line of communication with the government, through an attorney, can facilitate informed decisions for a response. One important issue to address in communications may involve the sizeable expense and disruption created by having to search for and produce all responsive documents at stated by the CID in its original form. For example, our team focuses on effectively interpreting the CID and facilitating discussions with federal prosecutors (United States Attorneys / Assistant U.S. Attorneys) who may be open to good faith negotiations about providing the government with the evidence it needs without the disproportionate financial expenses companies may incur in producing non-critical information.
- Providing Specifics – Simply stating that a company did nothing wrong or waging generalized complaints over time and resources needed to comply with a CID will have little to no impact on the government’s stance and demands. As such, companies must structure a response based of specificity and credibility. This means accumulating an arsenal of details regarding the volume, form, and type of data in a company’s files, as well as detailed estimates of costs (including forensic efforts and legal counsel) to respond. Additionally, companies should recognize the legitimacy of the government’s need to conduct its investigation, and be prepared to provide specific alternatives to CID demands which would require an inordinate amount of money and time in order to comply.
- Strategic Actionable Steps – Taking an approach that allows for an incremental production schedule can reduce burdens on a company, and provide insight into the focus of the investigation. While companies may truly want the government’s agreement to withdraw entire categories of demands, a better approach may involve creating steps and striking a balance between the burden of compliance and the value of requests in relation to the underlying investigation. Such a balance may take the form of limiting the CID to certain locations when companies have multiple offices or out-of-state operations, or creating an incremental production schedule that allows room for concession when the government does not need to further review certain types of information
Did your health care practice or business receive a CID? Get immediate insight and assistance when you call (713) 909-7323 for a confidential consultation.