Civil Investigative Demands
Civil Investigative Demand Lawyers
Civil investigative demands are serious and high stakes matters. Healthcare practices and providers are warranted in the concerns they have regarding demands made by authorities, complying with those demands, and the ultimate outcome of an investigation.
For practices that want to take the rights steps from the very beginning, working immediately with proven attorneys who have experience in this area of law and with representing practices on a proactive and responsive basis can make all the difference – both in terms of dealing with the demand itself and pursuing the most positive outcome possible.
Hendershot Cowart P.C. is a Houston-based law firm regarded for our depth of experience and comprehensive representation of practices and medical providers facing all types of matters involving health care regulations, fraud investigations, demands, and allegations. Over the years, we’ve been trusted by medical clients throughout Texas and beyond when it mattered most – and are prepared to immediately help your practice deal with the civil investigative demand process and the resulting chain of events.
On This Page
- What Is a Civil Investigative Demand?
- The Purpose of a Civil Investigative Demand
- The Do's and Don'ts of Responding to a Civil Investigative Demand
- How We Help Clients Respond to a Civil Investigative Demand
What Is a Civil Investigative Demand?
Civil investigative demands (CIDs) are subpoena-like notices issued by government investigators to collect evidence, documentation, and information for use in federal civil investigations. Investigators may use CIDs to investigate potential violations of the federal False Claims Act, the Anti-Kickback Statute, and Stark Law among others.
Civil investigative demands 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 healthcare fraud investigations and liability to civil or criminal penalties.
Because of the severe implications, evaluating and responding to a civil investigative demand becomes pivotal to the case and outcome. Physicians, medical professionals, or other healthcare entities involved must carefully assess the demands, measure their response, protect their rights, and take practical steps in reducing the scope of a potential healthcare fraud investigation or worse – violation or recoupment of payments.
The Purpose of a Civil Investigative Demand
Government agencies use civil investigative demands to collect testimony and documents for healthcare fraud investigations.
If the Attorney General, or a designee, has reason to believe that any person may be in possession of any material documents or information relevant to a federal investigation, the Attorney General may issue in writing and serve a civil investigative demand, requiring such person:
- to produce such documentary material for inspection and copying,
- to answer in writing written interrogatories with respect to such documentary material or information,
- to give oral testimony concerning such documentary material or information, or
- to furnish any combination of such material, answers, or testimony.
If your business or practice receives a civil investigative demand, this does not necessarily mean that you are the subject of the investigation. Civil investigative demands are also issued to individuals or entities that may have information related to the investigation. Regardless, care must be taken because information disclosed could change the course of the investigation.
The Do's and Don'ts of Responding to a Civil Investigative Demand
- One of the first steps is to engage outside experienced healthcare law counsel to assist in dealing with the Assistant U.S. Attorney (AUSA) or the State Attorney General, depending on which enforcement agency issued the CID.
- Second, ensure that no documentation is destroyed or deleted. Immediately after contacting experienced outside counsel, your entity should take affirmative steps to ensure no documentation is destroyed or deleted.
- Third, work with an attorney to act promptly. For a CID issued by the Texas Attorney General, you have twenty (20) days from the date of service to file a motion to set aside or modify the CID. With respect to a CID issued pursuant to 31 U.S. Code Section§3733, which is an express demand for any product of discovery, there are twenty (20) days to respond. However, a request for oral testimony under a civil investigative demand may provide as little as seven (7) days to respond. Further, a shorter period may be applicable if there are exceptional circumstances.
- Fourth – through retained counsel – open lines of communication with the issuing authority. It is essential to define the scope of the documentation requested, determine the claims at issue, and what information or documents your company will need to preserve.
- Don’t attempt to “go it alone” or speak with the investigator without first consulting an attorney experienced with regulatory investigations. Experienced counsel is vital to protecting your interests.
- Don’t destroy documentation or delete electronically stored information.
- Don’t be hostile or combative with the entity issuing the CID. CIDs are specifically authorized, and there are appropriate steps and measures for dealing with the scope and burden that a CID may impose.
- Don’t be misleading or untruthful. This type of activity can turn a civil investigation into a criminal matter.
How you or your company respond to a CID will be critical to the course of dealings concerning the CID. The healthcare fraud lawyers of Hendershot Cowart P.C. can walk you through the process, working diligently and deliberately to limit the disruption, risk, and overall cost to your organization.
How We Help Clients Respond to a Civil Investigative Demand
At Hendershot Cowart P.C., our Houston-based healthcare law attorneys have extensive experience representing healthcare 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:
- Immediate response – Civil investigative demands require prompt responses and have strict deadlines. Our attorneys can help you comply with those deadlines and quickly establish a willingness to cooperate with the investigation, which can have long-term implications on the outcome and scope of the investigation.
- Defining the scope – The documentation federal regulators seek through a civil investigative demand can be immensely broad. The demand may encompass accounting records, financial statements, marketing agreements, documents relating to physician relationships, and medical records. CIDs may also require responses to interrogatory responses and /or depositions. With the assistance of an attorney, assessing and defining 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 initiate investigations over possible wrongdoing and the power to make concessions. Our goal is to help you avoid mistakes that can negatively impact the investigator's stance on your practice or business. 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 – failures to provide information may be interpreted as deliberate attempts to impede an investigation – making employees available for interviews and responding promptly to inquiries.
- Developing dialogue with the government – Opening a line of communication with the government, through an attorney, can facilitate informed decisions when preparing 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 as stated by the CID in their 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 practices may incur in producing non-critical information.
- Internal communications – Within a practice itself, communication is important to keep staff apprised of the current climate, and ensure they take steps to facilitate compliance with the demand and respond appropriately to changes or requests. Our attorneys can advise you on what you should and should not share with your staff.
- 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 on specificity and credibility. This means accumulating an arsenal of details regarding the volume, form, and type of data in the practice'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 excessive amount of money and time in order to comply.
- Regulatory compliance – Aside from working with authorities to define the scope of a demand and facilitate communication, practices must address the focal point of regulatory compliance. This includes addressing the underlying issue for why the CID was issued, as well as the creation and implementation of comprehensive compliance plans that address all facets of a practice in terms of compliance, including proactive measures to prevent, identify, and address other occurrences or issues in the future.
- 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 healthcare practices 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.
- Resolution strategies – Dealing with a civil investigative demand can feel like an immediate and overwhelming threat, but practices should remember to establish their objectives. While every case is different, practices will largely structure their goals and game plans around avoiding criminal liability and keeping demands and investigations within the civil realm. Of course, objectives should also include strategies for avoiding or reducing penalties or setbacks that can threaten the future of a practice through the most appropriate means possible. Ensuring goals are within reason and creating sound strategies is a matter that requires extensive insight into the CID process, health care regulations, and the law.
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