Information Sharing with the Feds is Risky Business

Information Sharing with the Feds is Risky Business

Over the last few weeks, a few articles of mine addressed interacting with government agents. One topic that I did not discuss was determining whether you can, should, or must share information with the government. 

Unfortunately, it’s not possible to definitively answer that question for every topic, even in a book chapter, let alone in this article. In fact, I don’t know the answer for every possible scenario that might arise. I’ve dealt with the Nuclear Regulatory Commission, but I haven’t interacted with the Treasury Department or Secret Service, for example.

I don’t know that anyone knows the full authority of every single government agency, but I do know the basic principles that one can and should apply when a government agent requests information.

Threading this needle is hard. You may remember the story of a clinic that was visited by an individual demanding to photograph the clinic’s durable medical equipment (DME) inventory. The receptionist, fearful of breaching the Health Insurance Portability and Accountability Act (HIPAA), refused to allow the agent into that area. As a result, the clinic failed its DME survey and lost its DME number for two years.

But lest you think “when in doubt, grant access,” don’t forget about the hospital that provided a copy of a medical record to a local police agency, only to face a successful lawsuit from the patient for breaching confidentiality.

Knowing that I, a lawyer with three decades of experience, don’t know the answer to all these questions, what should you tell a receptionist working their first job about how to handle interactions with folks from the government?

The answer is to do four very simple things. 

First, be polite. This is a good principle in every situation. At times you might need to be firm, but firm is not inconsistent with polite. Kindness can get you through a lot of challenging situations.

Second, openly acknowledge a dilemma. Saying “we always like to provide information when we’re able, but we have to be careful to be sure we’re protecting patient confidentiality as necessary” is entirely accurate, and will help the requestor understand that you’re not merely being obstructionist. Ask the agent to provide the legal authority on which they are relying. Humility is a close relative to kindness; openly admitting your desire to “do the right thing” and the legal ambiguities associated with sharing information that the law often protects will earn goodwill from most well-intentioned agents.

Third, recognize you can’t un-ring the bell. Once information is given out, there’s really no way to get it back. For that reason, it makes sense to err on the side of declining to provide information, at least initially. It does augment the risk you’ll wind up like the poor clinic losing its DME number.

But it’s the fourth and final step that will really minimize risk. Get legal on the horn immediately. Other than a search warrant, I don’t know of a situation in which an agent has a right to access within a few minutes. The U.S. Department of Health and Human Services Office of Inspector General (HHS OIG) has the right to “immediate access” to records, but “immediate access” is defined as within 24 hours. Requests from the government for information are rare enough that they can universally be considered worthy of a call to counsel. When government agents show up at one of my clients, I expect to be pulled away from whatever I’m doing. It doesn’t happen often, but when it does, it’s important. Making a government agent wait for a few minutes while you confirm it is permissible, and totally reasonable.

You may want to stash away a copy of Hall and Oates’ “X-Static” album, so you can play the single “Wait For Me” as you work through the legal minefield. As they sing, “I guess that’s more than I should ask, but won’t you wait for me. 

Please wait for me.” If you are kind enough as you do it, odds are that they will!

Print Friendly, PDF & Email
Facebook
Twitter
LinkedIn

David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

Related Stories

Leave a Reply

Please log in to your account to comment on this article.

Featured Webcasts

Leveraging the CERT: A New Coding and Billing Risk Assessment Plan

Leveraging the CERT: A New Coding and Billing Risk Assessment Plan

Frank Cohen shows you how to leverage the Comprehensive Error Rate Testing Program (CERT) to create your own internal coding and billing risk assessment plan, including granular identification of risk areas and prioritizing audit tasks and functions resulting in decreased claim submission errors, reduced risk of audit-related damages, and a smoother, more efficient reimbursement process from Medicare.

April 9, 2024
2024 Observation Services Billing: How to Get It Right

2024 Observation Services Billing: How to Get It Right

Dr. Ronald Hirsch presents an essential “A to Z” review of Observation, including proper use for Medicare, Medicare Advantage, and commercial payers. He addresses the correct use of Observation in medical patients and surgical patients, and how to deal with the billing of unnecessary Observation services, professional fee billing, and more.

March 21, 2024
Top-10 Compliance Risk Areas for Hospitals & Physicians in 2024: Get Ahead of Federal Audit Targets

Top-10 Compliance Risk Areas for Hospitals & Physicians in 2024: Get Ahead of Federal Audit Targets

Explore the top-10 federal audit targets for 2024 in our webcast, “Top-10 Compliance Risk Areas for Hospitals & Physicians in 2024: Get Ahead of Federal Audit Targets,” featuring Certified Compliance Officer Michael G. Calahan, PA, MBA. Gain insights and best practices to proactively address risks, enhance compliance, and ensure financial well-being for your healthcare facility or practice. Join us for a comprehensive guide to successfully navigating the federal audit landscape.

February 22, 2024
Mastering Healthcare Refunds: Navigating Compliance with Confidence

Mastering Healthcare Refunds: Navigating Compliance with Confidence

Join healthcare attorney David Glaser, as he debunks refund myths, clarifies compliance essentials, and empowers healthcare professionals to safeguard facility finances. Uncover the secrets behind when to refund and why it matters. Don’t miss this crucial insight into strategic refund management.

February 29, 2024
2024 SDoH Update: Navigating Coding and Screening Assessment

2024 SDoH Update: Navigating Coding and Screening Assessment

Dive deep into the world of Social Determinants of Health (SDoH) coding with our comprehensive webcast. Explore the latest OPPS codes for 2024, understand SDoH assessments, and discover effective strategies for integrating coding seamlessly into healthcare practices. Gain invaluable insights and practical knowledge to navigate the complexities of SDoH coding confidently. Join us to unlock the potential of coding in promoting holistic patient care.

May 22, 2024
2024 ICD-10-CM/PCS Coding Clinic Update Webcast Series

2024 ICD-10-CM/PCS Coding Clinic Update Webcast Series

HIM coding expert, Kay Piper, RHIA, CDIP, CCS, reviews the guidance and updates coders and CDIs on important information in each of the AHA’s 2024 ICD-10-CM/PCS Quarterly Coding Clinics in easy-to-access on-demand webcasts, available shortly after each official publication.

April 15, 2024

Trending News

Happy National Doctor’s Day! Learn how to get a complimentary webcast on ‘Decoding Social Admissions’ as a token of our heartfelt appreciation! Click here to learn more →

Happy World Health Day! Our exclusive webcast, ‘2024 SDoH Update: Navigating Coding and Screening Assessment,’  is just $99 for a limited time! Use code WorldHealth24 at checkout.

SPRING INTO SAVINGS! Get 21% OFF during our exclusive two-day sale starting 3/21/2024. Use SPRING24 at checkout to claim this offer. Click here to learn more →