Handling Criminal Healthcare Fraud Cases Healthcare Enforcement Compliance Institute October 25, 2015 1:30 to 3:00 P.M. Washington, D.C. Kirk Ogrosky Arnold & Porter LLP Washington, DC Kirk.Ogrosky@aporter.com Robert Zink Assistant Chief U.S. Department of Justice Fraud Section, Criminal Division Washington, DC Robert.Zink@usdoj.gov Michael E. Clark Duane Morris LLP Houston, TX MEClark@duanemorris.com Overview Individual Accountability Guidance Role of In-House Compliance and Legal Counsel Overview of Investigation Jurisdiction Agencies Grand Jury Subpoenas Testimony Search Warrants Executives & Employees Proffers & Cooperation Indictment & Typical Offenses Trial & Sentencing Impact Exclusion Restitution 2 1
INTRODUCTION This session will cover how to handle a criminal health care fraud investigation and case. Key takeaway: No short cuts to understanding the facts and evaluating an individual s intent. Understand applicable laws and how investigations progress Recent actions of Medicare Fraud Strike Force Factors that favor indictment: Failure to provide service as billed Failure of patients to need service Patient harm 3 INDIVIDUAL ACCOUNTABILITY FOR CORPORATE WRONGDOING DAG SALLY YATES -- SEPT. 9, 2015 No credit for cooperation without providing all relevant facts relating to responsible individuals. Applies to Criminal and Civil Healthcare Investigations. Qui Tam cases can lead to criminal indictments. 4 2
Role of In-House Compliance and Legal Counsel Government working with whistleblowers to identify and prosecute False Claims Act cases, which frequently spawn parallel criminal cases. Government investigations can trigger collateral private litigation. Mistakes can result in waived privileges, binding admissions, payment suspension, loss of licenses or privileges, penalties, imprisonment, and governmentwide exclusion. Does the provider or institution have an effective compliance plan? Will it be necessary to conduct employee interviews? Who will handle them? Where will the interviews be conducted? How will interviews be memorialized? Will the company retain counsel for employees if requested? How will the company handle a refusal to cooperate? 5 Overview of Criminal Case Jurisdiction (Federal and State) FBI, OIG, and MFCU Investigation Stage Grand Jury Presentation Indictment/Information Trial Sentencing Collateral Impact 6 3
Process Procedures Witnesses Documents Summary Evidence Rule 6(e) Return of Indictment Arrest Warrant Asset Freeze Grand Jury 7 Search Warrants Process: Affidavit to Magistrate Probable Cause Place to be Searched Items to be Seized Plain view exception Employee Interviews Advice: Comply with law enforcement Call attorney Have an employee prepared Do not interfere Assist in location 8 4
Proffers & Cooperation Is It In The Corporation s Best Interest To Notify The Government? Counter-considerations: Strike suits, Derivative Suits, Waiver of Privileges and Market Reaction? What is Cooperation? Access to Internal Investigation Disciplining Employees Access to Employees and Information What To Expect During The Process Once You Self-report? Internal investigations are disruptive and costly The resulting report may not be privileged What Other Corrective Actions Can The Corporation Take? 9 Trial & Sentencing Most criminal cases do not proceed to trial At trial, DOJ obtains convictions in 4 out of 5 cases Exercising the right to trial, impacts potential punishment Understand USSG and all potential enhancements 10 5
Impact Incarceration Mandatory Restitution Fines Potential civil liability Mandatory exclusion Permissive exclusion Loan terms Legal fees 11 QUESTIONS? 12 6