It is wise to have a short checklist of things to consider when you face an audit or investigation. Whether you are addressing a civil investigative demand (CID), subpoena, search warrant, or even an audit from a Medicare Administrative Contractor (MAC), there are a few things you’ll want to consider.
The first is insurance. Even if you haven’t obtained insurance specifically targeting audits and investigations, you might already have some. Whether it’s a rider on your malpractice policy or part of your director’s and office’s error and omissions coverage, you might have something that will pay for your defense costs.
Check early, because failure to contact your insurance carrier can nullify your coverage. It is also worth considering purchasing coverage specifically for defense costs. Litigation is pricey, and insurance may let you avoid the pressure to settle, in order to avoid significant legal fees.
Make sure you take steps to preserve relevant documents. For subpoenas and other government investigations, the duty to preserve information is a legal one. While there is no requirement to preserve documents during a MAC audit, you’re going to want to make sure that any relevant information isn’t lost through some automated record-deletion protocol.
You may have some communication with a government official or consultant on file that saves you. When you’re dealing with a government investigation, you’re going to need to preserve people’s text messages. It’s a pain in the butt, but it’s important.
The next thing is difficult, but extremely important. Determine whether you’ve already been audited on the same issue. A past audit can have a couple of significant impacts. For example, I’m working with a client right now wherein the U.S. attorney’s office is conducting an inquiry on medical necessity. There are about 300 services at issue. It turns out that about 15 of them have already been audited by the government, and each claim reviewed passed its audit. I’m pretty confident that’s going to bring this investigation to a speedy conclusion.
Most systems don’t have an automated method to determine whether groups of claims have been audited, so this might be a difficult task. But if you can show records passed an audit, you are almost certain to prevail.
The other reason you want to identify past audits and refunds is that if there was statistical sampling, you’ll want to determine if claims under review were in that universe, so they aren’t recouped twice. Once again, the logistics here can be very difficult. But that doesn’t make them unimportant.
Finally, use counsel who will put up a fight. That doesn’t mean they have to be jerks; it means they have to be smart, creative, and stubborn. Some people think it’s important to hire lawyers with past government experience. While some lawyers with such experience are wonderful, some haven’t made the transition to private practice very well and will routinely defer to a government position. Other lawyers will have lots of bluster, but won’t come up with the creative argument that might win your case.
Look for a lawyer who will help you win as quietly and as economically as possible.
In light of the death last week of Bonnie Tyler, a tribute seems fitting. If you find yourself asking, “where have all the good men gone? and “where are all the gods?” or even “where is the streetwise Hercules to fight the rising odds?” you don’t need to hold out for a hero. You just need really solid preparation.
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