STARK NAKED, OR WELL
PREPARED?
Sunday, July 21, 2013
9:00 am – 10:00 am
Alan S. Gassman, J.D., LL.M.
agassman@gassmanpa.com
FROM 20 to 3: THE IRS’ NEW TEST FOR CLASSIFYING
INDPENDENT CONTRACTORS – From the Gassman Law
Associates Thursday Report – February 28, 2013
2
We thank Clearwater Johnson Pope tax lawyer Michael Little for pointing out the relatively new IRS SS-8 form used in determining
whether an individual is an employee or independent contractor, and our newest Stetson Law student/law clerk Jon DeSantis for
assisting with this portion of the Thursday Report.
Michael wins a gift certificate for the Kentucky Fried Chicken buffet once he sends us a box top from a Kellogg’s Fruit Loops cereal
box and a receipt showing that he purchased the cereal box at Publix. We are also sending Michael a self-addressed stamped
envelope for his convenience.
Most tax attorneys are familiar with the IRS’ traditional 20 Factor Test used to determine whether a worker will be classified as an
employee or independent contractor for tax purposes. Many tax advisors are not aware that the IRS adopted a new approach in
August 2011 by reorganizing the factors into a newly minted 3 Category Test on the most recent revision of the SS-8 Form.
The three categories are: a business’ behavioral control over a worker, a business’ financial control over a worker, and the type of
relationship between the business and worker. Under each of these categories, there are multiple factual considerations that the IRS
will use in gauging how a worker should be classified. Many of the factors in the traditional 20 Factor Test are specifically included
within the 3 Category Test, and it is not clear whether the omission of certain factors reflects a material difference between the tests
or merely a reorganization.
The IRS has provided substantial guidance regarding the 3 Category Test, including an outline of the test and examples in various
industries, in the 2013 version of the Employer’s Supplemental Tax Guide (available by CLICKING HERE). Time will tell whether the
evolution of the 20 Factor Test into the 3 Category Test will engender substantive changes in the IRS’ classification of workers as
independent contractors or employees.
FROM 20 to 3: THE IRS’ NEW TEST FOR CLASSIFYING
INDPENDENT CONTRACTORS – From the Gassman Law
Associates Thursday Report – February 28, 2013
3
The categories and factors are set forth below:
I. BEHAVIORAL CONTROL
These factors address the degree to which the business is able to direct and control how a worker performs the tasks for which he or
she was hired.
A. Instructions. When a person is subject to a business’ instructions about when, where, and how to work, the worker is likely an
employee. This control can include when to perform the work, where to perform the work, what equipment to use, where to purchase
supplies and services, what order of tasks to follow, and which individual is to perform certain tasks. The critical question is whether
the business retains the right to control how the work is performed. It is not necessary that instructions are actually given so long as
the employer has the right to control how the work is performed.
B. Training. Training a worker by requiring an experienced employee to work with the worker, by corresponding with the worker, by
requiring the worker to attend meetings, or by using other methods, indicates that the business wants the services performed in a
particular manner and that the worker is an employee. Independent contractors typically utilize their own methods without specific
training from the business.
II. FINANCIAL CONTROL
These factors address the degree to which the business has a right to control the business aspects of the work to be performed.
A. Unreimbursed Business Expenses. Independent contractors typically have unreimbursed expenses, while employees do not. This
is especially true for fixed ongoing costs that are incurred regardless of whether work is performed. If the person or persons for whom
the services are performed ordinarily pay the worker’s business and/or traveling expenses, the worker is ordinarily an employee.
FROM 20 to 3: THE IRS’ NEW TEST FOR CLASSIFYING
INDPENDENT CONTRACTORS – From the Gassman Law
Associates Thursday Report – February 28, 2013
4
B. Extent of Worker’s Investment. Independent contractors frequently have a significant investment in the facilities or tools used in
performing services. If the worker invests in facilities that are used by the worker in performing services and are not typically
maintained by employees (such as the maintenance of an office rented at fair value from an unrelated party), this tends to indicate
that the worker is an independent contractor. On the other hand, lack of investment in facilities indicates dependence on the person
or persons for whom the services are performed for such facilities and, accordingly, the existence of an employer-employee
relationship.
C. Extent worker’s services are available to relevant market. Independent contractors are generally able to seek out other business
opportunities. Factors that demonstrate this include advertising, maintaining a viable business location, and availability to work in the
relevant market.
D. How the business pays the worker. Payment by the hour, week, or month generally points to an employer-employee relationship,
provided that this method of payment is not just a convenient way of paying a lump sum agreed upon as the cost of a job. Payment
made by the job or on a straight commission generally indicates that the worker is an independent contractor.
E. Extent to which worker can make a profit or suffer a loss. A worker who can realize a profit or suffer a loss as a result of the
worker’s services (in addition to the profit or loss ordinarily realized by employees) is generally an independent contractor, but the
worker who cannot is an employee. An employee may be rewarded, disciplined, demoted, or fired depending on job performance, but
only an independent contractor can realize a profit or incur a financial loss from his or her work. In other words, an employee will
always get paid, while an independent contractor has a financial stake in the work to be performed.
III. RELATIONSHIP BETWEEN BUSINESS AND WORKER
These factors address the type of relationship between the business and worker.
A. Written Contract. If the business and worker have signed a written contract, it should specifically set out the parties’ intent to
establish an employer-employee or independent contractor relationship in addition to addressing the factors discussed in this section.
FROM 20 to 3: THE IRS’ NEW TEST FOR CLASSIFYING
INDPENDENT CONTRACTORS – From the Gassman Law
Associates Thursday Report – February 28, 2013
5
B. Provision of Benefits. When the business provides benefits such as insurance, pension plans, vacation pay, and sick pay, it is
more likely that the worker is an employee.
C. Permanency of Relationship. An expectation that the relationship will continue indefinitely demonstrates intent to create an
employer-employee relationship.
D. Importance of services performed. When a worker performs services integral to a business’ regular operations, it indicates an
employer-employee relationship. Conversely, it is more likely that a worker is an independent contractor when the work performed is
not part and parcel of the business. For example, compare a law firm retaining an attorney to perform legal work with retaining a
carpenter to repair a door.
For more information, see Renee Inomata, Perils of Misclassification of Workers as Independent Contractors, 2012 WL 3279180
(ASPATORE).
What You Should Know if You Are Contacted by a Government Agency
Compliments of Gabe Imperato, Broad and Cassel
6
Many times the government will investigate clients and their health care entities, and questions arise as to what to communicate to
employees, and whether to offer them legal counsel or advice. It is important not to interfere with a governmental investigation, but
getting the right information and advice to the right people can be very important, and we are very thankful to Gabe Imperato, Esq. of
the Broad and Cassel firm for the following memo that is very well written. Gabe’s practice and contact information is as set forth
below:
Gabriel L. Imperator is the Managing Partner of the Fort Lauderdale office of Broad and Cassel and serves on the Firm’s Executive
Committee. He is a member of the Health Law Practice Group and is the co-chair of the Firm’s White Collar Defense and Compliance
Practice Group. Mr. Imperato’s personal practice includes representing individuals and organizations accused of health care fraud
and assisting and advising health care organizations on corporate governance and compliance matters. Mr. Imperato is board
certified as a specialist in health law by the Florida Bar. He is also certified in Health Care Compliance (HCC) by the Health Care
Compliance Association, where he sits on the Board of Directors and is the Second Vice President.
He has served as Deputy Chief Counsel, Office of the General Counsel, United States Department of Health and Human Services,
Dallas, Texas. He advised and represented various agencies of the Department of Health and Human Services, including the Center
for Medicare and Medicaid Services, the Public Health Service, the Social Security Administration and the Office of the Inspector
General.
Mr. Imperator can be reached at Broad and Cassel, 954-745-5223 or via email at gimperato@broadandcassel.com.
Below is his memorandum:
1. A government investigator has the right to contact you and request to speak with you.
2. You have the right to choose whether or not to speak with any investigator. In all situations you have the right to
consult with legal counsel before you decide whether or not to talk to an investigator.
3. The government investigator does not have the right to insist upon an interview, and it is improper for him or her to
pressure you in an attempt to obtain an interview, because it is completely your choice whether or not to speak with any
investigator.
What You Should Know if You Are Contacted by a
Government Agency
7
Compliments of Gabe Imperato, Broad and Cassel
4. If you decide to refuse an interview, you should politely, but firmly decline the investigator’s request, but ask him or her
for agency and contact information.
5. Since you are not required to submit to an interview, if you decide that you are willing to submit one, you have the right
to insist upon any precondition you desire. For example, you may require that the interview be conducted only in the
presence of legal counsel. In some situations, your employer will pay for the cost of an attorney to represent you.
6. Regardless of your decision, if you are contacted by a government investigator, it is extremely helpful if you
immediately contact your supervisor at your place of employment and/or legal counsel.
You have every legal right to tell your employer about the government contact. The agent may request or suggest that
you keep the contact confidential, but there is no law that would prevent you from disclosing any detail of your
discussion with the agents. An employer should expect employees to advise of such government contacts.
7. Employees often wonder what their employer would prefer. The answer is that the decision is truly yours. However,
most employers (and their lawyers) would strongly encourage you to conduct the interview with legal counsel present.
8. Under all circumstances, remember that you must tell the truth to government agents. Failure to do so may, in and of
itself, be a violation of the law.
9. Do not destroy any documents or attempt to hide evidence under any circumstances.
Lester Perling’s Hypotheticals
Hypothetical #1
8
Your client is the administrator of a group practice. The
practice has decided that because of the administrative
burden and costs associated with collections, it would just
waive copayments and deductibles for its insured patients
but continue to charge the insurer the usual and customary
charge for the service. In addition, the practice is
establishing a prompt payment discount for patients that
fulfill their cost-sharing obligations at the time of service.
This prompt payment discount would be applied
contemporaneously to the services provided to the patient.
Lester Perling’s Hypotheticals
Hypothetical #1
Florida Law
9
• It is considered a “material omission” and “insurance fraud” for a
health care provider to waive copayments and deductibles as a
general business practice (Fla. Stat. 817.234(7)(a)).
• Under Fla. Admin. Code r. 69B-153.003 and 69O-153.003, “The
submission or presentation for payment to an insurer, health
maintenance organization or third party of a claim form, bill, or other
statement for services rendered, prepared or signed by a health care
provider or health care facility which does not disclose a preprovision of services agreement between the health care provider or
health care facility and the patient to accept less for the health care
services rendered than is reflected on the claim form, bill or
statement is an example of a false claim.”
Lester Perling’s Hypotheticals
Hypothetical #1
Florida Law (continued)
10
• Fla. Admin. Code r. 69B-153.001 and 69O-153.001(5): Pre-provision of
services agreement” means an agreement made or understood to
exist in advance of the provision of health care services between the
health care provider or health care facility and the patient to waive in
whole or in part that patient's payment of the co-payment or
deductible amount provided for in the contractual agreement
otherwise known as the “policy”, or “health maintenance
organization coverage document” between the patient and the
insurer, health maintenance organization or third party, or an
agreement to give the patient a discount for the immediate payment
of fees for services rendered.
• A health care provider is required to disclose pre-provision
agreements to the insurer in accordance with Fla. Admin. Code r.
69O-153.004.
Lester Perling’s Hypotheticals
Hypothetical #1
Kickback Issues
11
• Florida Law - It is a violation of the Florida Patient Brokering Statute
(Fla. Stat. § 817.505) for anyone to solicit referrals by providing
rebates, commissions or bonuses. So if the waiver of the
copayments and deductibles is considered inducement for referrals,
there could be a patient brokering issue here.
• Federal Law – The federal Anti-kickback statute is a criminal statute
that prohibits the exchange of anything of value, in an effort to
induce (or reward) the referral of federal health care business (42
U.S.C. § 1320a-7b).
• There is a safe harbor for waivers of beneficiary coinsurance and
deductible amounts but it only applies to inpatient services (42 CFR §
1001.952(k)).
• However, HHS-OIG opined in its 2008 advisory opinion that prompt
payment discounts are generally allowable as long as the discount is not
a means to induce patients to self-refer. Advisory Opinion 08-03 (Feb. 8,
2008), https://oig.hhs.gov/fraud/docs/advisoryopinions/2008/AdvOpn0803A.pdf.
Lester Perling’s Hypotheticals
Hypothetical #2
12
Your client is a solo physician practice. A police officer
comes to the practice and asks questions about the
treatment provided to a particular patient. The police
officer explains that he is conducting a preliminary
investigation involving that patient and explains that he
needs to know what medication the physician has
prescribed to the patient. The police officer does not have
a court order or subpoena for the medical records. How
should you advise the physician to respond to the police
officer’s request?
Lester Perling’s Hypotheticals
Hypothetical #2
Federal Law
13
• HIPAA: The Privacy Rule permits health care providers to comply
with court orders or court-ordered warrants, subpoenas or
summons, grand jury subpoenas, and administrative summons or
civil investigative demands. (45 CFR 164.512(f)(1)(ii)). Cannot turn
over PHI if the police officer does not have the appropriate order.
• In the case of an administrative summons or civil investigative
demand, if de-identified information cannot reasonably be used, the
information sought must be relevant and material to a legitimate law
enforcement inquiry, and the request must be specific and limited in
scope to the extent reasonably practicable in light of the purpose for
which the information is sought.
Lester Perling’s Hypotheticals
Hypothetical #2
Florida Law
14
• Allows medical records to be furnished in any case or criminal
action, unless otherwise prohibited by law, upon the issuance of a
court order or subpoena from a court of competent jurisdiction. The
party seeking such records pursuant to a subpoena must give proper
notice to the patient or the patient's legal representative. (Fla. Stat.
456.057(7)(a)).
• Search warrant?
• There is case law to support that medical records can be obtained through
a search warrant allowing law enforcement to seize records so long as
those records remained sealed pending notice to the patients. See State
v. Rattray, 903 So. 2d 1015 (4th DCA, 2005).
Lester Perling’s Hypotheticals
Hypothetical #2
Disclosure of Substance Abuse and/or
Mental Health Records?
15
• Federal Law – Under 42 U.S.C. § 290dd-2, records pertaining to
substance abuse treatment are deemed confidential. These records
can be disclosed if authorized by a court order. Court order must be
issued if “good cause” is shown. Good cause means that disclosure
is require to “avert a substantial risk of death or serious bodily
harm.” 42 U.S.C. § 290dd-2(b)(2)(B). Absent such court order, these
records cannot be used to “initiate or substantiate” any criminal
charges against a patient or to conduct an investigation of the
patient.
• Florida Law – Mental health records are confidential (Fla. Stat. §
394.4615). A specific court order is necessary for the release of this
type of information. Similarly substance abuse records are also
deemed confidential (Fla. Stat. § 397.501(7)) and can only be released
to law enforcement personnel under very limited circumstances.
Lester Perling’s Hypotheticals
Hypothetical #3
16
You represent a physician practice that is enrolled in the
Medicare and Medicaid programs. During a routine internal
audit the practice’s billing manager discovered that certain
claims submitted to and reimbursed by the Medicare and
Medicaid programs were “upcoded.” The billing manager
brings this error to your attention. What are the practice’s
obligations under state and federal law?
Lester Perling’s Hypotheticals
Hypothetical #3
Federal Law
17
• - Liability under the Federal False Claims Act (31 U.S.C. § 3729 et. al).
• - Reporting and Returning Overpayment (added by the Affordable Care Act):
•
•
•
“If a person has received an overpayment, the person shall (A) report and return
the overpayment to the Secretary, the State, an intermediary, a carrier, or a
contractor, as appropriate, at the correct address; and (B) notify the Secretary,
State, intermediary, carrier, or contractor to whom the overpayment was returned in
writing of the reason for the overpayment.” 42 U.S.C. § 1320a-7k(d)
60-day deadline to report and return overpayment: “An overpayment must be
reported and returned under paragraph (1) by the later of (A) the date which is 60
days after the date on which the overpayment was identified; or (B) the date any
corresponding cost report is due, if applicable.” 42 U.S.C. § 1320a-7k(d)
Any overpayment that is retained after the deadline for reporting and returning the
overpayment is considered “an obligation” for purposes of the federal False
Claims Act liability under 31 U.S.C. § 3729(b)(3).
Lester Perling’s Hypotheticals
Hypothetical #3
Florida Law
18
• Liability under the Florida False Claims Act (Fla. Stat. § 68.081 et. al).
• Medicaid requires providers ensure that the claims that it submits to
the Medicaid program are true and accurate (Fla. Stat. § 409.913). Each
day that the provider retains a payment to which she is not entitle,
constitutes a separate and sanctionable violation (Medicaid Provider
General Handbook, p. 5-5). The Medicaid agreement also requires
providers to refund any monies received from the Medicaid program in
error or in excess of the amount to which the provider was entitled
within 90 days of receipt.
Lester Perling’s Hypotheticals
Hypothetical #4
19
You represent a hospital that has a lease rental arrangement
with an orthopedic physician’s practice. Under the
arrangement, the physician pays the hospital a fair market
value monthly rent to lease office space from the hospital.
The rental agreement expired 8 months ago but the
physician has continued to occupy the space and
continues to pay the rental amount outlined in the expired
agreement. What are the implications under the STARK
law?
Lester Perling’s Hypotheticals
Hypothetical #4
STARK Law
20
• The lease exception to the STARK law (42 CFR § 411.357(a)) requires:
– That the agreement be set out in writing, signed by the parties and specifies
premises covered;
– The space rented does not exceed those that which is reasonable and
necessary for legitimate business purpose of the rental;
– Term must be for at least one year;
– The rental charges over the term of the agreement must be set out in
advance;
– The rental charge must not be determined in a way that takes in account the
volume or value of referrals or business generated between the parties;
– The agreement must be commercially reasonable even if no referral were
made between the parties;
– A month-to-month holdover is allowed for a period of 6 months.
• In this hypo, the fact that the lease agreement expired more than 6
months ago means that there is a STARK issue.
Lester Perling’s Hypotheticals
Hypothetical #4
STARK Law (continued)
21
• Application of temporary non-compliance provision (42 CFR §
411.353(f)) for arrangements that have fallen out of compliance with
STARK. A 90-day period of non-compliance is allowed if [1] the
arrangement was in compliance with STARK for at least 180 days prior
to when it fell out of compliance; [2] the arrangement has fallen out of
compliance for reasons beyond the control of the entity and the entity
took prompt steps to rectify the noncompliance; [3] the financial
relationship does not violate the Anti-kickback statute or other
state/federal regulations.
• STARK Self-Disclosure Protocol (Section 6409, Affordable Care Act).
• Potential violations of the federal and Florida FCAs.
• What if the physician stopped paying rent?
Lester Perling’s Hypotheticals
Hypothetical #5
22
Your client is a physician practicing with a group practice.
Your client’s first cousin is a minority owner of a home
health agency. Your client and the other physicians in the
group refer patients to the cousin’s home health agency for
care. In addition, your client’s wife is a specialty physician
who owns an independent practice to which your client and
the other physicians in the group refer patients. Are these
referral problematic under state and federal law?
Lester Perling’s Hypotheticals
Hypothetical #5
Federal Law
23
• “DHS” and “immediate family” are defined in 42 C.F.R. § 411.351.
– Home health services are DHS but a first cousin is not considered
“immediate family” and thus referral are not barred by the STARK
law.
– DHS referrals to the wife’s practice pose a STARK problem because
she is considered immediate family.
– As far as the other physicians in the group practice are concerned,
their referrals are not imputed to the physician unless the physician
“directs the group practice” (for example, if he is the medical director
of the group practice) [42 CFR § 411.353].
Lester Perling’s Hypotheticals
Hypothetical #5
Florida Law
24
• The Florida Patient Self-Referral Act applies to DHS and non-DHS
services (Fla. Stat. § 456.053).
• Referrals made to the first cousin would be allowable but all referrals
made to the wife’s practice would violate Florida law because such
referrals would be considered self-referrals.
FLORIDA PATIENT SELF-REFERRAL ACT
Category
Florida Patient Self-Referral Act
25
Stark Law
Applicability
Applies to all referrals for health care items or Limited to referrals for Designated Health Services
services (including, but not limited to Designated paid for covered by Medicare, Medicaid, Medicaid or
Health Services), regardless of payor.
Medicaid HMOs.
Financial Interest
Limited to referrals to entities with which the
physician is an investor or has an investment
interest.
Note: Other Florida laws prohibit compensation
arrangements between physicians and entities with
which the physician has a “financial interest.”
Applies to referrals to entities with which the
physician has a “financial relationship” through
ownership or investment interests, or through
“compensation arrangements.”
Health Designated Health Services include:
1) clinical laboratory services
2) physical therapy services
3) radiation therapy services
4) diagnostic-imaging services (not x-rays)
5) occupational therapy services
6) outpatient speech-language pathology services
Note: Items 7-12 to the right under the Stark Law
column are not regulated by the Florida Patient SelfReferral Act except as to the general prohibition with
respect to “health care items.”
Designated Health Services include:
1) clinical laboratory services
2) physical therapy services
3) radiation therapy services and supplies; radiology
4) other imaging services (includes xrays)
5) occupational therapy services
6) outpatient speech-language pathology services
Designated Health Services also include:
7) durable medical equipment and supplies
8) parenteral and enteral nutrients, equipment, and
supplies
9) prosthetics, orthotics, and supplies
10) home health services
11) outpatient prescription drugs
12) inpatient and outpatient hospital services
However, these services would still fall under “Health
Care Items or Services” in Florida Statute Section
456.053(5)(b).
Designated
Services
FLORIDA PATIENT SELF-REFERRAL ACT
Category
Florida Patient Self-Referral Act
Group
Practice Designated Health Services must be
Direct Supervision performed under the direct supervision of the
Requirements
referring physician or group practice, meaning
that one of the following individuals must be
present in the office suite when the service is
performed:
1) the referring physician; or
2) a physician who is the same group
practice as the referring physician.
Group
Practice Does
not
requirements.
Location
Requirements
impose
specific
26
Stark Law
Designated Health Services must be performed by one
of the following:
1) the referring physician;
2) a physician who is the same group
practice as the referring physician;
3) an individual who is supervised by the referring
physician; or
4) an individual who is supervised by another physician
in the same group.
location To use the in-office ancillary services exception,
Designated Health Services must be performed either:
1) in a “centralized building” used exclusively by the
group practice; or
2) in the “same building” where physicians in the group
provide the full range of services.
Physicians in a group practice may not receive
Group
Practice compensation directly or indirectly based on
Compensation
the volume or value of referrals of the
physician.
Note: The Stark Law guidance regarding group
practice compensation using overall profit
sharing methods and productivity bonuses
should apply in Florida.
Physicians in a group practice may not
receive compensation directly or
indirectly based on the volume or value
of referrals of the physician.
Note: Non-Medicare/Medicaid sharing of income from
Designated Health Services is not regulated by the
Stark Law.
Stark provides specific provisions allowing group
practices to pay physicians using certain overall profit
sharing methods and productivity bonuses. Allows
profits from designated health services to be divided
into “cost centers” consisting of at least 5 physicians.
Each “cost center” can implement its own compensation
methods, consistent with the Stark Law.
FLORIDA PATIENT SELF-REFERRAL ACT
Category
Florida Patient Self-Referral Act
27
Stark Law
Prohibition
against
Acceptance of
Outside Referrals
for Diagnostic
Imaging Services
Prohibits acceptance of outside referrals for Does not specifically address the issue of outside
diagnostic imaging services.
referrals.
Allows group practice to accept outside referrals
for diagnostic imaging services, so long as no
more than 15% of the group’s patients are
obtained through such outside referrals and
several strict requirements are met.
Prohibitions
Relating to Health
Care
Services
OTHER
THAN
Designated
Health Services
Prohibits referrals for the provision of any other Only applies to referrals for Designated Health Services
health care item or service in which the (as described above) paid for covered by Medicare,
physician is an investor. This broad provision Medicaid, Medicaid or Medicaid HMOs.
sweeps nearly every item or service provided by a
physician under the prohibitions of this Act, and
could include vitamins, food supplements, and
other non-regulated items.
See Florida Statute Section 456.053(5)(b).
Notable
Exceptions
for
Arrangements
that
Do
Not
Involve
Designated
Health Services
1) Publicly Traded Entity Exception; and
Not applicable to Stark Law.
2) Exception for physicians who own less than
50% of an investment interest in the entity where
the physician’s term of investment are the same
as terms offered to non-referring investors, and
Designated Health Services are not furnished by
the entity.
Penalties
Civil monetary penalties, Denial of payment,
Required refunds, and Exclusion from federal
health care programs
Imposes criminal penalties
Civil monetary penalties, Denial of payment, Required
refunds, and Exclusion from federal health care
programs
Imposes civil penalties only
Unannounced Medicare Audits: What To Do
If Investigators Come To Your Office
28
1. Don’t panic or feel rushed.
2. Make sure that you confirm the identity of the individuals and make copies of
their identification cards and credentials.
3. Contact qualified legal counsel and let the investigators wait while you do this.
4. Appoint a buffer person in the office to facilitate communication.
5. Even jokes can be misconstrued against you.
6. Be polite.
7. Be professional.
8. Stress that your primary concern is for patients and their privacy.
Unannounced Medicare Audits: What To Do
If Investigators Come To Your Office
9. Say as little as possible.
10. “Anything you say can and will be used against you.”
11. Do not agree to an interview.
12. Don’t seek sympathy from the investigators.
13. You will not get it!
14. Let employees know that they are not required to speak to the investigators.
15. Do not obstruct the investigators from approaching employees.
16. Do not sign anything not reviewed by legal counsel.
29
What to Tell Clients If and When
Investigators Show Up at Their Door
30
by: Gabe Imperato, Esq.
Many times the government will investigate clients and their health care entities, and questions arise as to what to
communicate to employees, and whether to offer them legal counsel or advice. It is important not to interfere with a
governmental investigation, but getting the right information and advice to the right people can be very important, and we
are very thankful to Gabe Imperato, Esq. of the Broad and Cassel firm for the following memo that is very well written.
Gabe’s practice and contact information is as set forth below:
1.
A government investigator has the right to contact you and request to speak with you.
2.
You have the right to choose whether or not to speak with any investigator. In all situations you have the right to
consult with legal counsel before you decide whether or not to talk to an investigator.
3.
The government investigator does not have the right to insist upon an interview, and it is improper for him or her to
pressure you in an attempt to obtain an interview, because it is completely your choice whether or not to speak with
any investigator.
4.
If you decide to refuse an interview, you should politely, but firmly decline the investigator’s request, but ask him or her
for agency and contact information.
5.
Since you are not required to submit to an interview, if you decide that you are willing to submit to one, you have the
right to insist upon any precondition you desire. For example, you may require that the interview be conducted only in
the presence of legal counsel. In some situations, your employer will pay for the cost of an attorney to represent you.
What to Tell Clients If and When
Investigators Show Up at Their Door
31
by: Gabe Imperato, Esq.
6.
Regardless of your decision, if you are contacted by a government investigator, it is extremely helpful if you
immediately contact your supervisor at your place of employment and/or legal counsel.
7.
You have every legal right to tell your employer about the government contact. The agent may request or suggest that
you keep the contact confidential, but there is no law that would prevent you from disclosing any detail of your
discussion with the agents. An employer should expect employees to advise of such government contacts.
8.
Employees often wonder what their employer would prefer. The answer is that the decision is truly yours. However,
most employers (and their lawyers) would strongly encourage you to conduct the interview with legal counsel present.
9.
Under all circumstances, remember that you must tell the truth to government agents. Failure to do so may, in and of
itself, be a violation of the law.
10. Do not destroy any documents or attempt to hide evidence under any circumstances.
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