Subpoenas in a Healthcare Investigation
Receiving a subpoena in a healthcare investigation can be a daunting event. It may be the first time that law enforcement has surfaced and provided an indication that someone is involved in healthcare investigation. There are several “must do’s” to respond correctly and protect your rights.
Retain with an attorney
An individual should always hire an experienced attorney to manage a subpoena response. Don’t try to wing it yourself. An experienced attorney will be able to engage with the government official who issued the subpoena and collect critical information about (1) the nature of the investigation; (2) what conduct is under investigation; and (3) how the government sees your role in the case (“status”). Answering these questions are critical and will drive the ultimate response.
Your attorney will identify the nature of the investigation
There are several types of subpoenas in a healthcare investigation, which provide critical information about the nature of the investigation.
A grand jury subpoena: A grand jury subpoena reveals a criminal investigation, conducted by either state or federal authorities. There are two types of grand jury subpoenas: a subpoena duces tecum and a subpoena ad testificandum. These two subpoenas are critically different. A subpoena duces tecum is a command to produce documents. A subpoena ad testificandum is a command to appear before the grand jury to provide testimony. Either way, a grand jury subpoena signals a high-risk juncture because the government is investigating criminal offenses.
An administrative subpoena: An administrative subpoena reveals a civil (non-criminal) investigation, conducted by either state or federal authorities. Federal agencies, such as the Department of Health and Human Services, Office of Inspector General (HHS OIG) or Homeland Security Investigations (HSI), often issue these subpoenas. Medicaid Fraud Control Units (MFCU), which sit as part of a State AG office, also issue administrative subpoenas to investigate fraud relating to Medicaid programs. These subpoenas can be issued by federal agencies in either a criminal or civil investigation. For this reason, retaining an attorney to figure out the nature of the investigation is even more important.
Civil Investigative Demand: A subpoena that indicates a civil investigation by government officials, again either state or federal. These subpoenas are often issued by DOJ Civil as part of a false claims act (FCA) investigation relating to fraud or upcoding or overbilling as to Medicare or other federal programs. State Attorneys General, like the NYAG or DC AG or MD AG, also issue these subpoenas in the course of investigations. Civil investigative demands can be for documents, testimony, or both.
Trial Subpoena: This is a subpoena to either testify at trial or bring documents to a trial. This subpoena is unlikely to be a surprise, as at this point the case has been investigated, publicly charged, and is far along in the process. Nonetheless, responding to this subpoena requires quick identification of the relevant issues because it has a hard deadline: normally the first day of trial.
Your attorney will identify the conduct under investigation
Whatever the form of the subpoena, it will likely request a swath of information. An attorney can work with the government to identify in broad strokes the type of information sought by the subpoena. In the healthcare context, the investigation can relate to a range of issues and offenses relating to: durable medical equipment (DME), telemedicine, office visits, wound care, home health, diversion of controlled substances (opioids or Adderall), prescription medication, genetic testing, vascular procedures, substance abuse. This list is endless. For this reason, identifying the issue under investigation will assist the response to the subpoena.
Your attorney will identify your status
In a criminal case, one’s “status” is the most important piece of information. One’s status drives one’s potential jeopardy. Status generally falls into one of three categories: target, subject or witness. It is generally a bad idea to try to figure out one’s status without an attorney, as one’s statements to agents may be used against the speaker.
A target is someone for whom federal prosecutors have substantial evidence that an individual committed a federal crime. This status is the most serious and indicates criminal charges may be forthcoming.
A subject is someone for whom federal prosecutors have evidence connecting the person to a crime but not necessarily having committed a crime. This status has the most wiggle room for prosecutors. It can apply to a range of individuals who are connected in varying degree to the offense under investigation.
A witness is someone who does not face any criminal exposure. It is the lowest-risk category, although some prosecutors are unwilling to identify someone as a witness and will instead classify an individual under the catch-all status of subject. Identifying where one falls in the investigation will drive the subpoena response.
After figuring out these threshold issues, next comes to the hard part: responding to the subpoena. That is a complicated process that cannot be distilled quickly. In a nutshell, it requires extensive interaction with an attorney to identify the universe of documents covered by the subpoena and then producing relevant, non-privileged documents to the government.
