Practical Advice on Handling a Government Enforcement Agency Inquiry

Governmental investigations can strike anxiety into any health care organization. Richard Merino, Managing Director, BRG, speaks with Leia Olsen, Lead System Compliance & Investigations Counsel, Ascension, Jonathan Porter, Partner, Husch Blackwell LLP, and William Brady, Partner, Holland & Knight LLP, about how health care organizations can strategically respond to governmental inquiries. They discuss the different types of investigative demands, how governmental investigations usually start, the first 48 hours and why organizations should conduct “parallel investigations,” why collaboration with the government usually makes sense, and when to approach the question of a settlement. Leia, Jonathan, and William spoke about this topic at AHLA’s 2025 Fraud and Compliance Forum in Baltimore, MD. Sponsored by BRG.

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Transcript

SPEAKER_00 0:05

This episode of AHLA Speaking of Health Law is sponsored by BRG. For more information, visit thinkbrg.com.

SPEAKER_02 0:16

Hello, and welcome to this American Health Lawyers Association podcast. My name is Richard Marino, and I'm a managing director in the health analytics practice at BRG. Today we're diving deep into a topic that causes fear and dread amongst all healthcare organizations, a governmental investigation. It doesn't matter if it's the OIG, DOJ, AG's office, or one of the other alphabet soup of agencies, the crisis feels the same. We're going to talk about how to know more than the government does, how to strategically respond to inquiries, and most importantly, how to lead your organization through the storm. Joining me today is a powerhouse panel that has lived these scenarios from every angle, outside law firm council and in-house health system investigative council. I will have them introduce themselves now, starting with Miss Leah Olson. Leah?

SPEAKER_01 1:07

Hi, thanks. Glad to be here. I'm Leah Olson. I am currently in-house compliance and investigation counsel for Ascension, but previously have served as outside counsel for many years, focusing on compliance and government investigation work.

SPEAKER_03 1:22

Yeah, hi. I'm Jonathan Porter. I'm a partner at Hush Blackwell. Uh powerhouse is a strong word, but it definitely applies to both Brazil, but I'm happy to happy to round out the panel. Like I said, I'm a partner at Hush Blackwell, former federal prosecutor uh here in Georgia, where I uh live and practice. And um when I was at DOJ, I uh focused almost exclusively on healthcare matters, both civil and criminal. So happy to be here today.

SPEAKER_04 1:49

Uh thanks, Richard. Uh, and thank you for the invitation to uh join this powerhouse panel. Uh Bill Brady, uh, I'm a partner at the law firm Holland and Knight, uh based out of our Boston office. Um I, before joining Holland and Knight uh last year, uh I spent a number of years as a federal prosecutor in the Boston U.S. Attorney's Office, where I was part of the healthcare fraud unit in the office focused on criminal investigations and prosecutions of healthcare fraud and other white-collar matters. Great to be with you today, looking forward to our conversation.

SPEAKER_02 2:23

Great. Uh same. Uh looking forward to it. And I will I'll go ahead and start with you, Bill, with this first question to kind of lay up a groundwork if we if we can. Can you explain the different types of investigative demands or notifications that a healthcare entity may receive uh when they're the subject or the target of an investigation?

SPEAKER_04 2:42

Uh sure, Richard. And and and it can land on your doorstep in a couple different ways. Um I know one thing that we're going to talk about is uh the dreaded scenario where someone shows up at reception, a federal agent shows up at reception. Um and oftentimes they'll have some legal process with them. Uh, and that can range, it takes a couple of forms. It could be a subpoena, a grand jury subpoena, it could be a uh so-called HIPAA subpoena, which is uh often a tool of choice for investigators and healthcare investigations, or it could also be a civil investigative demand, a CID. Um, and those are different tools the government has and uses in different situations, different circumstances. And on the receiving end of one of those uh uh one of those uh requests, uh there are certain certain clues you can draw, certain certain information that you can uh infer based on the form of uh process that the government is using when uh they first surface and you first learn about the investigation.

SPEAKER_02 3:48

Sure. Uh and more towards that, Leia, I know um you have uh dealt with these in the past as well. Um when it comes to civil investigative demands, for instance, what can you uh glean from the detail involved in those documents uh when received as far as what the source of the investigation is, whether it was a governmental investigation organically or maybe a key TAM relator or whistleblower situation?

SPEAKER_01 4:20

So you can't always tell on the face of the document. Um so you know, in-house, obviously, our first concern is making sure people know to get us the documents. Uh, it might go to a specific facility. Um, it's not necessarily directly coming to legal if somebody doesn't already have a contact with, you know, with somebody in-house. So making sure those in the organization understand and know, like immediately as soon as you get something, contact legal or if somebody's at the door, contact legal. Um but you know, once we have the documents in hand, we're gonna start looking at it. If you don't have in-house counsel that's focused in this area, you may immediately loop in external counsel. But if you do have somebody that can look at it and start looking at how they're asking the questions or what they're looking for, sometimes you can immediately kind of tell maybe it's a civil investigative demand, but they're really focusing on a different party. Um and where maybe you kind of get an inkling, like we might not be the target here, but they're still seeking information. Sometimes you can tell right off the bat what they're looking for. It's very focused on the organization. Um, and those are things that you know, once you have your contact with the agents, um, you can try to get some additional information from them uh if they're willing to share. You know, they may have varying degrees of what they're willing to share. Um, sometimes they will say, you know, you're not the target, or you know, we can't really speak to whether you are the target or not. So, you know, just come from the context clues of that document, you can usually tell what they might be focused on.

SPEAKER_02 5:59

Sure. And the fact that you the organization receives an investigative demand or some notification that they're the target of an investigation, uh it's an indication that the government has already kind of built a case or or knows a lot uh from an investigative perspective. Uh, I know that uh this group has called that the covert phase, uh, what the government was doing prior to the notification to the company. Um, Jonathan, do you want to talk about that covert case, uh that covert phase and what the government uh how far the government is ahead in this investigation?

SPEAKER_03 6:39

Yeah, good that's a very good question, Richard. Um so the the DOJ, yeah, so you got really two big phases of an investigation. You got the covert phase and then the overt phase. So covert means the the person being investigated, the target doesn't know, ideally does not know about the uh the investigation. And what DOJ is trying to do there is to is to develop um to gather evidence, develop theories so that um so that they're when they go overt, they can do so in as an effective way as possible. So some of the things that might happen during the covert phase, um it sort of depends on what the nature of the investigation is. A lot of my clients are you know large health systems or um or other healthcare companies that are reputable, and uh they're nine times out of ten dealing with civil investigations under the False Claims Act rather than criminal ones. Um, and so the the what happens at the covert stage really does change based on whether it's civil or criminal. On the civil side, you're not dealing most of the time, you're not dealing with search warrants, you're not dealing with grand jury subpoenas. Um, there, what you're dealing with is investigators going out and interviewing patients or former employees, trying to build some um, get some understanding of what's going on. And the reason DOJ does that is because they're either, when they're serving the CID ultimately, they're either going to want to ask the right question, they're always going to want to ask the right questions, but sometimes they're also gonna go and do interviews while they serve the CID. I would have agents do that a good bit is you show up at a CEO's residence or place of employment with a CID. Um, ask the questions then before they can lawyer up and get, you know, cute answers. Um, and but you need to know what questions to ask and what documents to request in the CID. The criminal um side is a little bit different. If there's a criminal investigation, that covert stage is a lot more, um, they can get a lot more stuff. Um, so you know, search warrants on email accounts is pretty common. Um, grand jury subpoenas to financial institutions to follow where the money is going, um, that's a that's a pretty common thing to do in the in the covert phase. But it's all about driving um an understanding of what's going on before you actually go um go overt and and actually start asking questions of the of the target themselves.

SPEAKER_02 9:08

Sure. And is there a way, Bill? I'll I'll give this to you. Uh, is there a way to understand or read how much the government has developed in this covert phase uh when you get you know notification of the overt phase or notification of the investigative uh you know, the investigation starting? Is there clues or is there ways that you can um internally investigate uh how much the government actually knows or has developed uh by the time that you receive the notice?

SPEAKER_04 9:42

Uh yes, Richard. And um, you know, one one way that comes to mind is you can ask them, right? Once once you're engaged. Um and um, you know, oftentimes, and I've I've I've experienced both sides of uh being on both sides of this conversation, uh, oftentimes the government will will tell you, you know, we we we're pretty far along in our work. Um and you know, that that has a certain shock and awe value uh and and certainly grabs the attention. Um and and I you know the government won't necessarily share all the details and exactly what they know, but but as far as where they are in their investigation, I think that's that's often that's a pretty common first conversation question that that we would ask. And and we usually get you know get some some response to that and some engagement. And then at the same time, Richard, I as we've talked about um uh in this context, uh it's a game of catch up. I mean, once you know that, uh particularly if there's any sort of criminal aspect to the case where there's the possibility of search warrants, recordings, things of that nature, um, then it becomes uh an exercise in your own internal diligence and investigation to try and uh through talking to people within your organization, uh, try and get a sense of um of what's happened. I I think we probably have all had the experience of uh we we learn about an investigation and then somebody goes and speaks to some people within the organization and and we hear, oh yeah, actually I did have a conversation with someone, and and for whatever reason it didn't surface before that. And so that's the sort of that's the sort of work that happens once you learn about these things, and you can learn quite a bit.

SPEAKER_02 11:33

Sure. And uh Leia, the first 48 hours obviously is is vital. Um just kind of gather information, gather, you know, what we know, what we don't know, uh how to uh arrange and organize uh your internal operation. Can you talk us talk a little bit about um what steps you take in that first 48 hours uh upon the receipt of an investigative demand?

SPEAKER_01 12:01

Sure. Um, and this may be different depending on the size of the organization. Again, not all organizations are gonna have you know skilled in-house investigation counsel. Um they may need to quickly rely and loop in external counsel to help with some of the information. But on my end, normally we're going to, you know, look at the document, try to see what clues we can get from that, uh, potentially reach out to the investigator if you know, if you're just receiving something and they're not physically there in front of you, like a civil investigative demand, make sure they understand you've received it, um, kind of set the initial, you know, relationship. You want to be building rapport, um, you know, cooperate and collaborate in a respectful way while also maintaining your rights as an organization. Um, internally, I think you're gonna start thinking about what are they asking for? Who are the individuals that might have relevant information and start keeping track of you know where that information may be, uh, obviously for potentially starting a potential legal hold process where you would be making sure people aren't destroying or getting rid of any materials and retaining information. And so those are kind of the first things that I would be doing. Also, if you're going to be engaging external counsel, you know, thinking about what where where is this investigation stemming from? Um, if you have multiple sources of counsel, who might be the best fit for that based on the work, the location, um, you know, prior relationships with that office, um, a number of different factors that could potentially go into that strategy.

SPEAKER_02 13:44

Sure. And speaking of that, from the outside counsel perspective, Jonathan, you you get called by Leia or or other in-house in-house counsel or a healthcare organization to help with an investigation. Um, given the fact that a lot of CIDs or subpoenas or or other notification you get from the government are usually broad. Uh, it's one of the first things you do is is strategically figure out a way to maybe narrow the scope of the investigative demand uh to see if you can you know pinpoint more accurately where where the targeting is.

SPEAKER_03 14:21

Yes, Richard, without a doubt, the the the goal is to is to tighten this up. You're you're right. A lot of CIDs are uh shockingly broad when when I've got clients who have never been under investigation before and they get a CID that's you know 20 pages and and you know 47 specifications, they they panic and say, I I don't know what to do here. Um and I and I get that. So um, but let me back up for just a second because Leia made a really good point about the the first 48 hours, but I also want to point out if you're in an organization, I think it's it's rare for I mean Leia's Ascension, which is a large organization. Um, a lot of organizations, even ascension size, they don't have a person in Leia's role where they've got someone who knows what they're doing when it comes to investigations. Um, if you don't have experience talking with federal agents or federal prosecutors, I would not reach out to them. I I would I would get outside counsel first and then have outside counsel do the initial touch because you just don't I there I don't think any good can come from you know a CEO or or someone in-house who doesn't understand what we're doing, what it is that we do reaching out and starting to make statements uh uh about the underlying conduct. I can't tell you how often when I was at DOJ, I was stunned at the people who reached out and would just start making statements before they got lawyers. So I I wouldn't recommend that. I would say get get a lawyer first. The the first thing that your lawyer is hopefully going to do is to work with you on um start an internal investigation, but also get the right um documents preserved. Stop, you know, auto-delete processes. That's that's that's crucial. And then notify the right people within the organization of what's going on. Um, you know, I've I've usually in those first 48 hours notifying the right people within the organization, the right stakeholders, um, compliance teams, boards sometimes. Um, so those are the types of things that that are really important to be done. But once you're after those 48 hours and you're talking about what it looks like to respond to a subpoena or CID, whatever it is, um, there you're you're right, Richard. There are a number of things that you want to do in order to narrow that up. And and that goes back to what Bill was talking about earlier, which is having that frank conversation, which is, you know, tell me where you're at. I mean, you you you you gave us a subpoena that's gonna require, you know, massive man hours and great costs. Is there something we can do to sort of shortcut that, get you the documents that that you're looking for without this, you know, hospital or or whatever going through the the great cost of responding to the full things. Um, and a lot of times that that's more an exercise in in good faith than anything else, is to is to tell them, look, we're we're we're with you on this, we're gonna find out what what happened. We'll work with you if we find out that something wrong happened. Um, and and if you're willing to do that, I think oftentimes DOJ is gonna be willing to to work with you on scope or timing or rolling productions or anything like that. DOJ knows that they're that they've got big, broad subpoenas and CIDs. They're they're accustomed to working with people on reasonable solutions.

SPEAKER_02 17:36

Sure. Do we see some differences or distinctions depending on the agency that's investigating? Let's say you mentioned DOJ, usually very broad. Uh, they can be fishing on the edges uh a little bit a lot of times. Um does OIG feel like a little bit more targeted um in their investigation, or are they similarly uh searching around in the dark a little bit?

SPEAKER_03 18:03

Yeah, that's a good question. I mean, if it it so the the instance where you'd get something directly from OIG is when they're looking at like, you know, CMP stuff, or if the agents themselves are gonna are gonna issue what what's called like an administrative subpoena, their own internal subpoena, not one, not a HIPAA subpoena or grand jury subpoena, but sometimes they've got their own subpoena power. If they're going out with that, that means they're really, really early. That's typically pretty targeted. Sometimes they're looking for patient records and and it's not the big 20-page with the definitions and everything like that. Um, if so, if OIG themselves are reaching out, it's an agent reaching out. Um, typically they're they're they're pretty early in the process. And that's usually not sent to the target, by the way.

SPEAKER_02 18:45

Gotcha, gotcha. And and Bill, let's continue that with like the AG's office. Um, whether it's you know the federal AG or even state AGs, um what is your experience or your thought on you know, kind of their investigative process as as to what they provide from a subpoena, from a you know, investigative demand? What's uh and and how can you kind of strategically evaluate that based on the source of the investigation?

SPEAKER_04 19:15

Richard, I I think it's a it's a similar approach to what uh what Leia and Jonathan described, uh whether it's coming from a state AG's office or or from Maine Justice or U.S. Attorney's Office, um and the AG's office. And we see now, you know, we we we do see CIDs come in from aggressive AG's offices, um, particularly in some of the areas where as federal priorities have shifted maybe away from some uh former priorities, uh kind of consumer-based um uh issues. We see the AGs um getting a little bit more aggressive there. But but I would say generally the approach is the same uh in terms of trying to establish that communication, trying to it's gonna end up being a relationship while you're dealing with this matter on both sides. And so trying to approach it, approach it like a relationship, build that relationship, try and build a little bit of credibility, um it tends to be helpful. And I think when we we think about the scope and timing of a response, whether it's dealing with the state or dealing with the feds, um, you know, I think oftentimes an approach of um a discussion of priorities and and discussing in terms of you know, what are your priorities? What do you because if if we had to go collect everything you've asked for, it's gonna take forever. And and you don't want that. We certainly don't want to do that too. So help us help us prioritize things so we kind of own the problem together. That has benefit of you're gonna learn a lot more too, and and through that process, you'll be able to focus in on what this is really about. And uh and and just trying to get the the so-called low-hanging fruit and providing that and using that to sort of build up that store of good faith. I I think generally that that that leaves the client in a better position with with a little more room to do uh do what they need to do within reason and responding.

SPEAKER_02 21:23

Sure. And you know, as you get through this initial shock phase of receiving the investigative demand or however the investigation was notified to you, um, and doing the internal quick fix type of things, hold notices and and uh you know, compliance type of uh things to make sure that we're secure. Leia, how do we kind of evaluate uh the need to do parallel investigations, an internal type of investigation of the targeted type of subject matter that's the subject. Of the investigation itself. How do we handle that internally? How do we evaluate whether we know about this problem already or this is something that is new to us? How do we evaluate the need and the commencement of a parallel investigation?

SPEAKER_01 22:18

Well, I think, you know, of course, you're going to use your skilled counsel to provide guidance on what should or shouldn't be done. And I think it depends on what is the focus, right? Sometimes you certainly the goal is always to know more than the government does. So you want to be looking internally. You don't want to just be sitting there and waiting for them to figure out and tell you what is going on, right? So if it's something related to a physician arrangement, you're going to start thinking through like what are the contracts? What were the processes we use? Do we think everything is button up there? If it's a false claims or billing issue, you're going to, you know, potentially start looking at that, maybe determine if you need to do some sort of audit or something internally to start figuring out what the issues might be or if there if there are potential errors or not. So I think you're going to be handling all of that. And the good thing is that by identifying things, I mean, the government doesn't expect you to be perfect, but they want to know how you respond to an issue, right? They want to know that if you identify an issue that you're taking appropriate corrective action. So sometimes you may not know really if there is an issue or not, but if you find one, it gives you the opportunity to fix it and say we've, you know, we've addressed it, and then also to address kind of any historical, you know, issues that might need to be done and also stop any period, potential period of noncompliance. Sometimes you think, you know, you've done everything and you have processes in place. So you're doing an investigation, but not necessarily like an audit. Um, and you know, working with your counsel on do you need to engage third parties to assist? Because any sort of if you are going to do an audit, you want to make sure it's structured in a way that you can potentially use the results, or you know, the government can rely on what you've done. If you can have a really strong process for how you've done it, that sometimes, and maybe Jonathan and and Bill can speak to this of how the government views that and you know, hopefully they can take your results or be comfortable with how you've structured something versus them doing their own audit or different things like that. So I think it's all kind of part of the strategy for your defense.

SPEAKER_02 24:40

Sure. Jonathan, to that point, um, what's the calculus that you have when you take a look at the need for a parallel investigation or wanting to investigate uh the same subject matter that the government is targeting, uh, maybe bringing in a third-party uh firm to do an investigation under a privilege type of scenario? Uh, how do we evaluate uh the need to do that and the the pluses and minus uh minuses of that approach?

SPEAKER_03 25:10

Yeah, I think I think it's absolutely critical. And I'll be honest, I don't know that I would do an engagement where the client didn't want us to also run some sort of a parallel investigation into internally into what's going on. We we we on the defense side, we are at a huge disadvantage because we don't know what DOJ knows or what the agents know. Um and we don't know sometimes there's a sometimes there's a misunderstanding, oftentimes there's a misunderstanding about what was going on within an organization. You're hearing one side sometimes from a whistleblower who has a vested interest in in a particular narrative. And that's not always that's not always true. I don't know how we could do our jobs and present and and correct misperceptions or uh add context if we don't do the internal investigation. So I I it's absolutely vital that that we figure it out. The way that you do it always depends on what the circumstances are. You know, my my firm, a lot of large firms have, you know, retired federal agents who now work for us and and will will help us with um internal investigations. Um I'll oftentimes go go and sit down and interview people myself to try to figure out what happened, why did it happen. Um, though those things are are totally normal. A lot of times you will need to bring in uh look, it's healthcare, it's complicated. And I as much as I've been around healthcare, there's a lot that I don't know. And so bringing in experts is is very common. I bring in experts and consultants a lot. The key there is to make sure that the it's clearly delineated. These are consulting experts. These are not, you know, these are not testifying experts. We're not there yet. So you you got to treat them as consulting experts. They're they're helping me as the lawyer, and they are um, they're gonna help me explain what needs to be explained to DOJ under privilege. I mean, that's absolutely critical because you know the last thing that we want is all of a sudden our conversations with our consulting experts or consultants um getting into the the hands of the Justice Department, that never goes well. Um so making sure that we're we're clear on roles is is absolutely necessary, but you got to run an internal investigation. Absolutely got to.

SPEAKER_02 27:20

Sure. And and with that, Bill, like um as the internal investigation is performed with under privilege, usually, as Jonathan mentioned, um how do you evaluate and uh strategically look at the results of that investigation as it as it proceeds? And how does that uh adjust or frame your conversations or your strategy with the with the agency that's investigating?

SPEAKER_04 27:50

Well, Richard, I I I think it it absolutely frames the approach with the investigators and the government. Um because as you learn more internally from your own internal investigation and those efforts, um it it there's a whole range of possibilities, right? It it may be that there's really not an issue here, or there's a misunderstanding, or the way the government seems to be coming at this, uh, they may have it all wrong, or they may be off. It may be the case that you do actually uncover and surface some issues that when you first learn about the investigation or you first learn about the government's interest, nobody really had any idea about, but now you know about it. And and you need to you need to figure out how that's going to shape the approach, where especially where in a lot of, I'd say most of the work we do, um, you know, we're working with organizations that um that are cooperating with the investigation and want to cooperate, um, not just because that fits with the approach and the culture of the organization, but also because in these situations, there are tremendous, tremendous benefits to uh you know cooperation and and the credit that flows from that cooperation. And so as you learn things in your internal investigation that are relevant to the government's investigation, that are of interest to the government, uh a key, a key calculus, a key discussion that happens with the client, with the organizations is what do we do? How do how do we think about disclosing this? Things of that nature. And that becomes that that ends up being an important part of the decision making in terms of uh what we learn through the internal investigation, and then how do we position things with the government? Again, if we're in a cooperation posture, how do we do it in a way where we preserve that credibility so that when it comes time to really try to persuade and make our points, uh, we maximize our chances that they're gonna listen.

SPEAKER_02 29:56

Sure. Uh Leia, as far as that same internal investigation, um and you you do it and you find some things that you know are on target with what the government is looking for, but you also may uncover some things that may be ancillary or tangential to the targeted subject matter of the investigation itself. Um how do you approach those types of things? Um, you know, as far as strategically looking to maybe get some more of that cooperation credit uh with the government if you do find something that maybe wasn't exactly what they were looking for, but you found uh that maybe uh something that you may want to self-disclose, for instance?

SPEAKER_01 30:42

Um, I mean, I think it's, you know, it's always good to identify issues. The goal is, you know, it's always better to identify them before the government does. So if you identify ancillary issues, whether they're kind of even more far removed and tangential, that you just happen to be looking at something versus, you know, they are on par with what's going on. Um, I think that's again, a lot of these things, right? There's no necessarily right or wrong answer. It's working with your council and what is the strategy there. I mean, if it's really far attenuated, you know, you may decide to address it through your own self-disclosure process, whether it's a billing issue that you address through a voluntary refund or a self-disclosure of some purpose of some type. Um, or if it is more similarly related to the matter that's going on, you know, you may choose to have that incorporated in or somehow approach the DOJ about, you know, we've identified this further issue as well. Um, you know, hopefully, you know, or potentially in some situation, you may have a settlement, you may be getting a release, you may, you know, all different types of scenarios. And so you want to make sure that you're taking advantage of whatever is going on to get the you know, the protection that that you have available. And again, skilled counsel, I think, is is key in that discussion of what is the best approach for the type of issue that's been identified.

SPEAKER_02 32:11

Sure. And from an internal perspective, Leia, um, obviously these investigations are not just paper transferring back and forth between the target organization and the agency. There's also a lot of um interviews that take place, uh, discussions between the government and um the entities, uh, employees, executive, and the like. Uh, how do you provide a proper up-job warning uh to an employee, for instance, who may think that the company's lawyer is their own lawyer?

SPEAKER_01 32:45

I think it's key just and Jonathan and Will or Bill also are probably involved in these discussions as they're interviewing people. I mean, I think it's just key right up front in that conversation to be clear that, you know, we are legal counsel for the organization, not for the individual employee, and that, you know, the company holds the privilege, only the company can waive the privilege. Um, oftentimes, you know, an employee they're working in the scope of their duties, there's not a concern, you know, they don't necessarily need separate counsel, but recognizing that at some point if those interests diverge, they may, and making clear that again, we don't represent them, we rent represent the organization. Um, and just being you know clear with that right up front.

unknown 33:33

Sure.

SPEAKER_02 33:34

Jonathan, is there ever a situation where not collaborating or or not playing nice with the DOJ, for instance, is a better strategy than um you know going to have lunch and coffee uh with the DOJ?

SPEAKER_03 33:49

Yeah, that's a that's a that's a good one, Richard. Um, and so I in my opinion, I I'm I'm biased here because I I really I've seen how when I was at DOJ, I saw how expert defense lawyers got excellent results by collaborating. And and so I I'm I've done the same in private practice and always collaborated. Even when I think that that my client, when I think my client's done nothing wrong, I collaborate. When I think my client has done something very wrong, I collaborate. Um, I honestly can't think of a scenario where it's best to not collaborate. When when I don't think there's a scenario where you you say, Well, I'll just I'm gonna respond your speed and I'm not gonna talk to you. I'll tell you this though, and I'm surprised by this. There are a lot of firms that don't agree with me on this. There are um the I think you're inviting an awful lot of risk when you just turn over documents and you don't engage with DOJ. There's so many times when DOJ goes into something and just doesn't understand. This is healthcare, it's complicated. Sometimes DOJ gets it wrong. And by not collaborating with DOJ, you're not going to have the opportunity to correct a misperception. Um, so I think that you've got to collaborate like 10 times out of 10.

SPEAKER_02 35:07

Sure. And Bill, to that point, uh, are there points or or there are issues in an investigation where you look at what they're asking for, you look at the aggression that they're they're investigating, and and it it makes sense to push back, uh at least in a targeted fashion, or in some cases maybe to check them a little bit uh when their uh their aggression is a little bit uh inappropriate or beyond what you want to uh uh what you want to deal with.

SPEAKER_04 35:37

Richard, absolutely. And and before I address that, I I just want to uh tack on a point uh to what Jonathan said, and and and I um I share his view uh and and that approach, and and I think I share it for the same reasons, which is that just based on my experience, it just seems to work better by trying to collaborate. And and I think the way that I try to think about it is there may there may come a point where we disagree and we've got to fight and and we've got to hash it out and we're in a uh less cooperative posture. But let's hope we never get there. And if we do, um, you know, certainly I think for the client's interest and our interest, it I think you're always in a stronger position if you know you can kind of get, you know, you have some sort of common understanding of the facts and you sort of worked your way to that point. And so then you're you know, then then you're having disagreements at a point where you can look back and say, look, we we tried to be transparent, we tried to give you everything you wanted, we really tried to work with you. Um, but here we are. And and and the other the other point I'd tack on, another caveat I would add is um there are a number of examples in the last year where um, and this is this is on uh very charged political issues like uh gender-affirming care, where HIPAA subpoenas out of the gate were served on providers. And uh and those providers and their counsel decided this is we are gonna fight this from the drop and and went to court and have had significant success in doing that in a way that I think is unprecedented. And so so I think there are there are some situations, and we'll see how things play out in the future here, um, where it just may not make sense. There's just no room to really try to collaborate or cooperate, even at a very, very early stage. But uh, but I think those are certainly outlier situations.

SPEAKER_02 37:50

Um as the investigation goes along, Leah, are there indicators, benchmarks, or other guideposts that um are that appear that uh makes you think about, okay, now let's talk about settlement or let's let's evaluate uh possible settlement negotiations or or settlement offers uh to the government. Um what have you seen uh are those benchmarks or or guideposts uh in an investigation or your collaboration with the government that to indicate that that may be uh the next best approach?

SPEAKER_01 38:34

Um I don't know if I have specific guideposts. What I would say is kind of, you know, as you're doing that internal investigation and you're kind of understanding what maybe is going on or um where you think there might be some misper, you know, misperceptions of you know, on the government side, maybe what they've heard from a whistleblower or a complainant. You know, I think there is a strategy of when is the time to, you know, try to connect with them, try to have a meeting, you know, present kind of your findings, um, you know, depending on where they are. I think if it's a billing matter and there's an audit, that's gonna be different than if it's you know, looking at a physician arrangement and it's like, well, there's really nothing here that we see, um, really kind of they've kept asking for information and you kind of like you've produced everything, and where else can you go with it? So um, I think the timing of that is, you know, part of the skill of external counsel and how they're gonna help advise you through that situation.

unknown 39:34

Sure.

SPEAKER_02 39:34

Jonathan, from your perspective, uh in advising clients about that same issue, what what would you say are some of those indicators?

SPEAKER_03 39:44

Boy, they it it really does depend. Uh, I mean, it depends on just what what the facts are, what the um how the conversations with DOJ are going. You know, have you done presentations? Have there has DOJ come back and said, look, we hear your presentation, but we just disagree with you. Um, have you done your presentation and it went really well? Uh has DOJ done a presentation? Has um have you have you reached sort of an impasse where you you it's clear that you just don't agree on the on the on the substance? Um are are you just clearly culpable? I mean, there are situations where you you get in there and you just say, look, we we know that we did wrong here. The question is whether we knew or were reckless in determining whether we did reckless in in doing the thing that we did. Those are all things that you got to work through in order to to figure out is is this the time to do it? Um, so I it's it that is a very fact-specific um question and and really does depend on on a lot of things.

SPEAKER_02 40:46

Sure. Let me end our session with this. Uh what is the one bumper sticker statement, piece of practical advice uh that each of you can provide uh a healthcare organization who finds himself under investigation, who's never had to deal with this before. Uh what's kind of that's uh that nugget of wisdom that you would um that you would uh provide those organizations? Let's start with uh Bill.

SPEAKER_04 41:17

Well, well, I guess the bumper sticker would be the same. I uh same that applies in just about all of life situations, which is don't panic. Um because when someone gets stopped and interviewed by an agent in their driveway or the your your service, uh your agent for service of process receives a subpoena or something. I mean, the the initial reaction, especially Richard, when you're an organization that's never dealt with something like this before and never in a million years imagined that the government would look at them and think or suggest that they've done something wrong. It is there is a tough emotional reaction and sense of panic of where this could go and how bad this could be. And I think going back to our conversation about the first 48 hours and and the plan and what you can do, there's gonna be there's gonna be an initial flurry of activity. You're gonna get the right team in place, you're gonna try and get the facts as best as you can, take in information from everywhere you can. And then it's gonna be a process. And that process is gonna take a long time, and there's gonna be a lot of opportunities for advocacy and to try and guide it in a way where you know the organization will make it through and see the other side. And that's hard to see when it first something like this first lands. And so that's why I think my bumper sticker would be just don't panic.

unknown 42:43

Right.

SPEAKER_04 42:43

Jonathan, how about you?

SPEAKER_03 42:45

Bill took mine. Don't panic was literally the the two words I was gonna say. But so since Bill took mine, I'll go with the the second best, which is um just be careful what you put in writing if it's not with a with a lawyer in those first 48 hours. I I can't tell you how many times someone starts just you know texting employees saying, hey, you know, what what do you think happened? Employees are gonna go nuts when they find out that a federal agent showed up. You've got to very quickly make sure people know don't don't don't worry. We've got lawyers, we're gonna make sure that we figure out what's going on. But in the meantime, please don't put stuff in writing, try to limit your communications. Uh those text messages can be just brutal. And so uh that's number one is don't panic. Number two is um don't put don't write panicked test mess text messages or emails to other people that are not privileged. Sure. Leah.

SPEAKER_01 43:41

Um I'll take just a it, it's it's all the same. Don't panic. Um, but I think as council, one of our roles, particularly in house, is to be the calming presence, help explain what is going on, you know, the business, the parties and the leaders. Never been through this, they don't know what to expect. And I think you know, helping them remain calm, helping them understand like this could be a long process, like we may be going to be through this for multiple years. Um, but that you know, you're in good hands, we have counsel to help you. If you have questions, they are there. Um, I think that is just really, you know, we were there to be partners with the organization, um, and really just help guide them through it.

SPEAKER_02 44:34

I know I mentioned that this was a powerhouse panel at the onset of this podcast, and there's nothing that uh sways me from that approach. Uh, I want to thank each of you uh in this panel uh for this great conversation, great discussion, uh, very helpful uh for uh healthcare organizations, council, outside and inside uh on this uh very uh important topic. So thank you all very, very much.

SPEAKER_00 45:04

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