If your office is served with a government subpoena for records, be extremely careful not to destroy any records (paper or electronic), create any records or do anything that could be conceived as obstructing an investigation. A recent case from Boston, Massachusetts involving a dermatologist illustrates the wrong way to handle a records subpoena and the consequences it can have.
In January, 2009, Dr. Razzaque Ahmed, a dermatologist from Brookline, Massachusetts, , was sentenced in federal court for obstructing a federal health care fraud investigation. His sentence was 2 years probation, the first six months of which are to be served in home confinement, 400 hours of community service and a $20,000 fine. He was also ordered to forfeit $2.9 million dollars to the Government.
At the earlier plea hearing, the prosecutor told the Court that had the case proceeded to trial the Government’s evidence would have proven that in the fall of 2000, while a criminal investigation of his Medicare billings was pending, and after he had been served with a subpoena seeking information about his Medicare billings, Dr. Ahmed willfully obstructed the investigation by creating (and producing to the government) false documents. This included backdated letters to doctors who had referred patients to him, as well as lab test reports, that purported to state and show that Ahmed had performed a diagnostic test that showed that the patients suffered from a rare autoimmune skin disease, called pemphigus, when in fact he had not performed such a test.
See: http://www.usdoj.gov/usao/ma/Press%20Office%20-%20Press%20Release%20Files/Jan2009/AhmedAbdulRazzaque.html
Apart from the licensing and board implications involved in creating or destroying records, doing so can turn an administrative case into a criminal case. Obstruction of justice can also involve contacting witnesses and asking them to testify a certain way. If your office is served with a state or federal governmental subpoena for records, seek legal counsel to assist you in your response. Failure to respond properly can cause greater problems.
Any questions or comments should be directed to: tgreen@greenassoc.com. Tracy Green is a principal at Green and Associates. They focus a significant part of their practice on the representation of health care providers in audits, compliance, civil, administrative and criminal matters.
