Unfortunately for physicians, then list of entities, agencies and organizations empowered to take adverse action against them continues to grow at an alarming rate. Understanding, from the very beginning, what they are, what they are not and how to handle their intrusion/investigations are the keys to risk managing the threat they inherently carry.
- · BOM – Board of Medicine
- · DEA – Drug Enforcement Agency
- · AG/FCA – Attorney General/False Claims Act
- · CMS – Centers for Medicare Services
- · OIG/FBI – Office of the Inspector General/Federal Bureau of Investigation
- · HMO – Health Maintenance Organization
- · FTC – Federal Trade Commission
- · HIPAA – Health Insurance Portability and Accountability Act
- · CLIA – Clinical Laboratory Improvement Act
- · EMTALA – Emergency Medical Treatment and Active Labor Act
- · OSHA – Occupational Safety and Health Administration
- · MEC – Medical Executive Committees
- · IRS – Internal Revenue Service
What also ties these entities together in such an unprecedented manner is the mandatory cross-referral, cross reporting and intra-communications they are required to engage in whenever a complaint, an investigation and/or an action involves a physicians or medical practice. To facilitate this legal interweaving, each of these entities also has direct access to a central, physician based depository of data as to each and every practicing physician in the United States.
The National Practitioner Data Bank
- · Medical malpractice
- · Hospital actions
- · Licensing actions
- · Health Plans/Managed Care Company actions
- · Government actions
As each and every physician, regardless of guilt or innocence, faces even the most seemingly benign or innocuous inquiry by any of these entities, certain questions and considerations must be preeminent in their minds.
Written Correspondence – virtually nothing sent to a physician or a medical practice today is “educational” and/or “informational”. The true legal role of such correspondence is that it serves as a notice of investigation, nothing less.
Records Requests – escalating the level of investigation, entities that request records are thereby devoting more assets to the investigation. Careful consideration must be given as to how to produce records, what records to send and what records not to send.
Subpoenas – entering into the formal legal process, certain adverse entities also possess the power to subpoena records and/or documents. Such a measure is a serious escalation and significant legal event in the life of an investigation and/or action. Attempts to avoid service are counterproductive and legal counsel should always be consulted before issuing even a single document. Moreover, a subpoena does not compel a physician or a medical practice office staff member to speak with the investigators or offer a statement of any form.
Investigators – many physicians harm themselves, in a permanent, uncorrectable manner by falling prey to common, yet effective tactics utilized by investigators. Either through charm, false promises of leniency and/or intimidation, physicians all too commonly speak freely and recklessly with investigators – prior to understanding the true nature of the investigation, their legal rights and/or the threat of the underlying actions. No physician, or medical practice employee, should ever speak with any investigator witho