Talking About the Real Thing

Talking About the Real Thing

My most recent article focused on issues surrounding imposter government agents. This week, let’s focus on the real thing. 

Let’s say a U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) agent comes by and says, “Because it would interfere with my investigation, I ask that you not tell anyone that I contacted you.”

Or perhaps you receive a grand jury subpoena that includes this wording: “The United States Attorney requests that you do not disclose the existence of this subpoena. Any such disclosure would impede the investigation being conducted and thereby interfere with the enforcement of the law.”

Either may mistakenly cause you to think you can’t immediately call your counsel and tell them about the contact – which you should. 

Obviously, obstructing an investigation is a big deal. If you follow the news, you know that getting in trouble for obstructing an investigation is often more likely to get a person in trouble than the underlying conduct.

I’ve been fortunate in that so far, no client I’ve been representing on a health fraud matter has ever faced jail time for the alleged fraud. But I did have one physician I represented on a fraud investigation who went to jail for something OTHER than the alleged fraud. I only represented him in the fraud investigation; he had other counsel for his criminal trial. The fraud investigation involved the teaching physician rule.

We convinced the government to drop that investigation. Unfortunately, however, early on in the investigation, the doctors were slated to meet individually with the investigators. The night before talking with the investigators, the doctors all met. I totally understand their intention: they wanted to make sure their recollections were accurate. In their minds, they were acting honestly and appropriately.

But the agents and the government saw things very differently. In the eyes of the government, “making sure you have your facts straight” can easily be viewed as a form of obstruction of justice. You always want to avoid talking about the substance of an investigation with anyone other than your counsel. 

But talking about the substance of the investigation is incredibly different than talking about the process. Telling someone that you’ve been contacted by an agent is entirely permissible.

I would recommend you not talk about what you told the agent to anyone other than counsel, but the fact that there is a government investigation isn’t protected information, with a very narrow exception for certain acts of terrorism and bank fraud investigations.

In a health fraud investigation, if you so choose, you can rent the Goodyear Blimp to publicize the fact that there’s an investigation. More importantly, you can ALWAYS talk to a lawyer. And if you ever have any doubt about the legality of a situation, you absolutely SHOULD ask your corporate counsel about what is going on. 

In closing, if an agent asks you not to tell someone about a conversation, it’s a request, not an order. You’re free to tell anyone in the world that you were contacted by the government.

Talking about the substance of your interaction with the government is more worrisome, and I’d limit that conversation with counsel.

I’m a huge fan of Natalie Merchant and 10,000 Maniacs. But if she showed up as a government agent saying, “Don’t talk, I will listen,” I would disregard her request and remain silent. And I would immediately contact counsel and tell them about my visit from Agent Merchant. 

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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.

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