Facing the men in black

What to do when they law knocks on your door about HIPAA compliance.

It’s a sunny day, the birds are singing, kids are playing, and your practice is doing great. Patients fill your waiting room, you’ve paid the bills, and you even have money in the bank. Life is good.

Or so you think. Then they come through the door of your practice, in dark suits, ties, and sunglasses. The words “federal agent”—OIG or FBI— are plastered across their raid jackets. And in that split second, the wonderful life you were living is now in turmoil.

What is the first thing you do when you see these “men in black” standing in the middle of your waiting room? After your initial—and understandable—panic, you might come to and realize you are lying on the floor with your patients and the government agents looking down at you.

As you eventually pick yourself up, one of the agents hands you some papers and begins to speak to you, but you can’t understand a single word because your mind is spinning in a whirlwind of fear.

So, what do you do now? Call your parents? No! You pull yourself together quickly because you are in a serious situation and need to focus. When government representatives come into your office, it is usually not a positive thing. They are not the Publishers Clearing House prize patrol bringing good tidings.

You need to determine the nature of the papers you’ve been handed. Are you dealing with a subpoena, a search warrant, or worse, an arrest warrant?

Know the terminology

It’s easy to confuse a subpoena with a search warrant. According to Black’s Law Dictionary, the definitions are as follows:

• Subpoena: “The process by which the attendance of a witness is required is called a ‘subpoena.’ It is a writ or order directed to a person, and requiring his attendance at a particular time and place to testify as a witness. It may also require him to bring with him any books, documents, or other tilings under his control which he is bound by law to produce in evidence.”
• Search warrant: “Is an order in writing, issued by a justice or other magistrate, in the name of the state, directed to a sheriff, constable, or other officer, commanding him to search a specified house, shop, or other premises, for personal property alleged to have been stolen, or for unlawful goods, and to bring the same, when found, before the magistrate, and usually also the body of the person occupying the premises, to be dealt with according to law.”

In layman’s terms, if you are given a subpoena, you are ordered to provide records, evidence, or your person to a court or hearing on a specific date. If seeking records, a subpoena specifies what records are being requested.

If you are given a search warrant, agents will take any and all records, files, and devices that may contain evidence related to the crime being investigated. This could include your patient and billing records, memory devices, external hard drives, and computers.

If you’re served with either a subpoena or a search warrant, comply with the request. If you interfere with a search warrant being served, you may be arrested or taken into temporary custody. In either situation, contact your attorney immediately and explain the situation, and reach out to your compliance officers as well.

Who you gonna call?

The time to look for an attorney is not while the agents are removing records and computers from your office. Have an idea of who to call in such a situation ahead of time. What if you call your attorney and the answering service tells you he or she is on a remote island in the Pacific and won’t be back for a month? What is your backup plan.

You should also notify your practice’s compliance officer. If you are the only compliance officer for your practice, how useful will you be when stressed out to the max? Have a compliance committee rather than just one person designated as the officer.

Lastly, according to federal sentencing guidelines, the only two things that a judge may take into consideration if you are found guilty of violating a healthcare law include:

1. Did you notify the payer and return any money or payments that you received improperly?
2. Did you have a valid, up-to-date and living ethics and Medicare compliance program in place before the law came to check on you? For a valid HIPAA compliance program, a risk analysis must be completed or the Office of Civil Rights considers your program nonexistent.

Plan now, before the suits show up, because afterward will be too late.

DIANE M. BARTON, DC, MCS-P, CIC, is a graduate of palmer College. She has been in practice for 28 years in the Chicago area.

JAMES MINX, MCS-P, CIC, graduated from Western Illinois University with a degree in law enforcement. He retired as a sergeant from the Illinois State police in 2010. Barton and minx have presented sessions on compliance matters and own medical Compliance Specialists.

They can be contacted through icalcompliancespecialists.com.