Recently there has been a surprising increase in the number of subpoenas served on health care providers. Fraud investigations, overpayment investigations, licensing board investigations, carrier audits, personal injury and workers compensation claims, all generate demands for production of records (and sometimes interviews). And while subpoenas have become commonplace for medical practices, the response to a subpoena cannot be treated lightly. A subpoena, particularly one issued by a government agency such as the Office of Inspector General, State Medicaid Fraud Control Unit, or Department of Justice, reveals the existence of an investigation and the potential for significant risk. Accordingly, every health care provider should be prepared to respond appropriately to service of a subpoena. Yet few health care providers have policies in place for responding to investigations.
We recommend that every healthcare provider implement a policy for responding to investigative demands. An effective policy will identify the primary concerns and decisions that result from a demand for production of records. Among the practical and strategic considerations triggered by receipt of a subpoena are: Who in the practice should respond to the subpoena? Does the subpoena request documents that should not be produced because of confidentiality concerns, because they may be protected by privilege or some other legitimate concern? Is the subpoena improperly broad? Should an attorney be consulted?
An effective policy serves as an essential checklist to assure that proper steps are taken to respond to the subpoena. The policy should ensure that one person or department is clearly identified as responsible for responding to the investigative demand. All employees must be aware that subpoenas should be immediately forwarded to the person or department in charge. Responses should be timely and complete. However, care should be taken to review the subpoena to ensure that it is not improperly broad. It is rarely beneficial to provide more information than is requested. And any response should ensure that confidential information, patient records and attorney/client privileged information in particular, are protected. Copies of anything produced should be retained and properly labeled to avoid subsequent confusion about what was produced.
A subpoena often announces an investigation of some kind, and information contained in the subpoena itself may reveal the nature and subject of the investigation. This information can be valuable to a provider, and the policy should identify the circumstances under which and the means by which the practice will conduct an internal investigation to quickly assess risk, rectify problems early and minimize exposure.
In light of increased enforcement efforts by both government and private payors, now is the time to establish a policy, or to review your practice’s existing policy, for responding to investigative demands to ensure your practice responds to such demands as efficiently as possible and in a manner consistent with the practice’s interests.