On November 22nd, the Department of Justice announced that it recovered $3 billion in civil settlements and judgments in cases involving fraud against the government in fiscal year 2010. This amount includes $2.5 billion in health care fraud recoveries, which is the largest in history, and is the second largest annual recovery of civil fraud claims. Due to the aggressive stance the Obama administration and U.S. Attorney General Holder have taken in fighting fraud against the government, it is imperative that the manner in which the Department of Justice and government agencies are conducting investigations is clearly understood.
Roetzel is actively involved with defending Civil Investigative Demands (CID) throughout the United States. The initial notice of a False Claims investigation will commence with a cover letter from the investigating U.S. Attorney, which will include a specific CID stating the government is seeking information related to an investigation of either fraud, false claims or anti-kickback violations.
It is imperative that clients seek our assistance in responding to and interacting with the United States Attorney's Office, as many businesses are not aware of their legal rights and the severe risk of communicating with the Department of Justice. Unfortunately, several business owners who are subjects of a CID have responded to the Department of Justice without legal counsel. The subjects unintentionally provided privileged documents to the government, spoke with government agents and provided information, which the government considers misleading, and thus a violation of 18 USC 1001 (providing false information to a government agency). In other investigations, health care providers have utilized counsel unfamiliar with the False Claims Act to interact with the government and then participated in sworn interviews with the U.S. Attorney without the benefit of the requisite knowledge of the protections or safeguards afforded to the health care provider. The health care provider usually fails to assert the Fifth Amendment when necessary, likely resulting in a subpoena before a criminal grand jury.
The government's practice of using CIDs encompasses more than just the subject of health care. Clients need to know if they receive ANY communication from a U.S. governmental agency, they need to contact Roetzel as counsel, as it may have the appearance of a civil matter, but it can always involve criminal implications. The government's fraud enforcement efforts have not only secured fines, forfeitures, restitution and the return of illegal profits, but they have also secured criminal convictions. It is common for business owners to try and respond to the demands on their own, as they believe the demands are similar to state regulatory requests. This is a major misperception, as these are federal demands impacting all industries.