Posted and filed under Compliance, Fraud, FWA, Healthcare.

Retired OIG Special Agent and Advize’s Director of Litigation & FWA Support will be stepping in each week to examine current fraud trends from the lens of an investigator. Stay tuned for weekly insights, updates, and information on healthcare’s most expensive crimes.

Over the past several weeks, I discussed the different types of investigations that are common in the healthcare fraud world, as well as the three main types of subpoenas that are available to federal investigators conducting such inquiries.  This week, I thought I would provide some insight into what happens when the investigation needs to take another direction to proving the fraud.

From a criminal investigation perspective, the thought is always obtaining a search warrant and arrest warrant/indictment.  There will likely be wide discussion on this premise, but as a criminal investigator, you always want to get the search warrant.  A search warrant will allow investigators an opportunity to obtain hard copy records and electronic media that can demonstrate the knowledge and intent that if often required to bring criminal charges to a target of an investigation.  With the wide use of cloud-based services, the execution of search warrants will vary.

Cloud based providers of services will still need to be “served” with the search warrant authorizing the release of certain items stored in the cloud.  Cloud service providers are getting better and better at being able to respond, produce and understand the manner in which the information needs to be disclosed to law enforcement.  There are a variety of methods of learning what and where data is stored by targets, but suffice to say, it is always important to fashion a search warrant to ensure the production is what is sought.  This idea is not unlike the search warrant seeking items from a physical location, law enforcement just does not have to do the work to obtain the cloud records.

The culmination of search warrants (whether it be virtual, physical or most likely, both), and the review of those materials, falls on the investigative team.  From that review, the key documents and findings can be presented to the prosecutor for a determination on charging the target with a crime.  Prosecutors will solicit the investigator for an opinion, but the decision to charge, and what to charge, is ultimately the prosecutor’s responsibility.  Once that decision is made, there are two courses of action that can be taken: Complaint or Indictment.

A person charged with a crime based upon a Complaint, has not been formally charged (that is what the Indictment is for-and Complaints are usually not really considered charging documents), and is not able to plead guilty to a Complaint.  A complaint is merely an attestation from the investigator that there is Probable Cause to believe the defendant (no longer a target) has committed the crime alleged. The Grand Jury is not involved in the filing of a Complaint, although documents and testimony solicited from Grand Jury subpoenas may be used in the narrative for a Complaint to demonstrate facts that would need to suggest the Probable Cause.

By comparison, an Indictment is a formal charging document alleging that the defendant committed a crime, and the elements of the crime are outlined in the Indictment.  Unlike a Complaint, if a defendant chooses to go to trial on the charges, the prosecution must prove the elements of the statute alleged to have been violated in the Indictment.  A Complaint will broadly indicate the statute at issue and provide a “story” of the alleged behavior, whereas an Indictment may be very limited in specific investigation facts.  The facts for an Indictment are presented to a Grand Jury who sits in the district where the case is being investigated.  The Grand Jury votes on whether or not to move the Indictment forward, and formally charge the defendant with the crime.

Should a defendant wish to avoid trial, and plead guilty, the plea of guilty is taken on a document filed by the Prosecutor called an Information.  That document reads much like an Indictment but is not presented to a Grand Jury to be voted upon; the defendant has already agreed to plead guilty to the allegations so there is no need for an Indictment.  Those wishing to exercise their rights to a trial will need to be Indicted before a Grand Jury prior to a trial commencing.  In either event, if a defendant pleads guilty or is found guilty by the jury after the criminal trial, the defendant can then be sentenced for the crime.

Unlike a good episode of NYPD Blue or Law and Order, investigations can take months, if not years to complete, and just as long for a trial to occur.  The wheels of justice tend to move a bit slower than television, and we usually do not have the benefit of writers who know the outcome long before it airs.

Advize Health LLC is a healthcare advisory and consulting company that provides a breadth of healthcare industry services in the payer, provider, and legal communities. Contact Eric Rubenstein for more information on our Fraud Spotlight series.