Responding to a Subpoena Duces Tecum from the Medicaid Fraud Control Unit

The Medicaid Fraud Control Unit is part of the New York Attorney General’s office.  It is responsible for investigating and prosecuting Medicaid fraud.

A subpoena from this office means that you are the target of a criminal investigation.  By the time you receive the subpoena, the Medicaid Fraud Control Unit has already spent months analyzing your billing records.  In many cases, investigators and prosecutors have already interviewed some of your patients and former employees.

The prosecutors believe that you may be guilty of Medicaid fraud.  The purpose of the subpoena is to gather the evidence they need to charge you with serious crimes.

Here are steps you should take immediately to protect your rights.

  1. Work with an Experienced Lawyer Before You Respond

The prosecutor and investigators are not on your side.  They are not trying to give you a chance to prove that you are innocent.  They are trying to prove that you are guilty of serious crimes.  Anything you say to them will be used against you.

Your first step should be to consult an experienced Medicaid fraud defense lawyer.  Talk to a lawyer beforeyou talk to investigators or turn over any documents.

Your lawyer will review the subpoena to determine if it is valid and if you have a basis to challenge it.  Your lawyer will also negotiate with the prosecutor to clarify the scope of the requests and to give you enough time to prepare a careful response.  These early steps can often protect you from an overly broad investigation and limit your potential liability.

Some clients ask:  “But if I get a lawyer, won’t the prosecutor think I’m guilty?” The prosecutor already thinks you are guilty.  Hiring a lawyer sends a message that you are treating the investigation professionally, and that you will vigorously defend yourself.

  1. Help Your Lawyer Analyze the Requested Documents Before You Respond

The first rule in any investigation is that you and your lawyer should know more than the prosecutor knows.  This begins with a thorough review of the documents the prosecutor wants you to turn over.

The best Medicaid fraud defense lawyers can identify potential problem areas based on the types of documents requested in the subpoena, a thorough review of those documents, and conversations with the prosecutor.  This is critical information that can help you prepare your defenses.  You need to take these steps before you respond to the subpoena.

  1. Do Not Speak to Investigators or Prosecutors Without a Lawyer

You and your staff are not required to say anything to investigators or prosecutors.  You have the right to remain silent and to insist that all communications go through your lawyer.  If you or your staff are approached by investigators, politely say that you cannot talk right now.  Then give the investigator’s name and number to your lawyer.

Thesubpoena duces tecumrequires you to produce documents, but it does not require you to speak to investigators or prosecutors.  At some point, your lawyer may recommend that you agree to be interviewed by the prosecutor.  That never happens until afteryou fully understand why the prosecutor is investigating you and what your defenses are. When that time comes, your lawyer will negotiate with the prosecutor to ensure that your rights are protected.  For example, your lawyer may negotiate a “proffer” agreement, which will let you tell your side of the story with a written promise from the prosecutor that nothing you say will be used against you in court.

  1. Do Not Provide Documents Unless They Are Requested in the Subpoena

At the initial stages of the investigation, it is never a good idea to provide more documents than the Medicaid Fraud Control Unit has requested.  The more documents investigators have, the more time they will spend on your case. This could result in them exploring areas that they never would have explored.

There may be a point in the investigation when your lawyer recommends providing documents that will explain what actually happened and support your defenses.  You and your lawyer need to understand what the prosecutor’s concerns are before you make that decision.

  1. Do Not Provide Records of Non-Medicaid Patients

The Medicaid Fraud Control Unit is only allowed to request records of Medicaid patients.  It has no right to request records of any other patients and has no reason to review them.  You should not turn over the records of non-Medicaid without first getting the patient’s written consent.

  1. Do Not Provide Original Records Unless Required

Medicaid Fraud Control Unit subpoenas always request original records.  You and your lawyer should resist turning over originals.  Once you turn over original records, it is very difficult to get them back.  In addition, it is difficult to keep track of original records once they are turned over.

The better practice is to produce a certified copy patient records with sequential, Bates-stamped numbers on each page.  This allows you and your lawyer to keep track of each page that is turned over to the government.  If the government has a specific need to review the original of any record, they can make a request for those specific documents.

To schedule an initial consultation with an experienced Medicaid fraud defense lawyer, call John Howley, Esq. directly at (212) 601-2728.

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