Avoiding Obstruction of Justice in Healthcare Cases

This week I was having lunch with Sarah Wirskye, my friend and "go-to" white-collar defense lawyer, when the topic came up of "obstruction of Justice" in healthcare cases. Sarah agreed to share her experience with us in the following interview (Turns out, it’s not what you think.):

Merritt: “Obstruction of justice” is what cops threaten on Law & Order to get the witness to talk - right?

Wirskye: No. "Obstruction" in healthcare investigations usually means interfering with a government agency’s work in one of three categories: 1.) statements and actions toward the government; 2.) statements and actions toward third parties; and 3.) deleting, altering, or failing to produce documents. We are seeing a sharp rise in cases where the healthcare provider really didn’t think he or she was doing anything wrong.

Merritt: How can a person accidentally "obstruct justice?"

Wirskye: In the healthcare context, the offense does not involve what all of us would view as "obstruction" - for example, bribing a juror - but rather more obscure obstructive conduct. For example, an innocent misstatement, adding or removing helpful information in documents, or inadvertently failing to produce a responsive document may be viewed as obstruction by the government. Obstruction is usually easier for the government to prove than explaining complex healthcare fraud schemes to the jury. Martha Stewart's trial is a great example of the force of the obstruction statutes. She was criminally convicted of obstruction for covering up actions, not the underlying crime.

Merritt: Are there special rules in the healthcare context?

Wirskye: In 1996, as a part of HIPAA, Congress added a new criminal statute which provides "[w]hoever willfully prevents, obstructs, misleads, delays or attempts to prevent, obstruct, mislead, or delay the communication of information or records relating to a violation of a federal health care offense to a criminal investigator shall be fined under this title or imprisoned not more than 5 years, or both."

However prosecutors often use other obstruction statues which may be easier to prove. For example, section 1519, part of the Sarbanes-Oxley act, was highly controversial when enacted because it removes certain key proof burdens. Significantly, the government does not have to prove which specific "pending proceeding" the accused attempted to obstruct. Prosecutors must however, still establish the following: 1.) the accused knowingly directed the obstructive act to affect an issue or matter within the jurisdiction of any United States department or agency; and 2.) the accused acted at least "in relation to" or "in contemplation" of such issue or matter.

Merritt: Can you give us some examples?

Wirskye: There are three primary areas in which healthcare providers potentially violate the obstruction statutes:

Government Interviews of the Provider: While an intentional or blatant lie to an investigator is likely an easy obstruction case for the government to prove (if the other elements of the statute are satisfied), even an innocent misstatement may be construed as obstruction of justice.

Government Interviews of Third Parties: This sometimes occurs when a healthcare provider is under investigation, and he or she tells the employees not to talk about certain topics or not to talk to the government. I have seen cases in which the instruction to not speak to the government may be for the "protection of the employee" so the employee does not become "scared." Again, these actions were characterized as obstruction by the government.

Documents: Destroying, failing to produce, or altering incriminating information in documents is a fairly easy obstruction case for the government to prove if the other elements of the statute are satisfied. However, merely “cleaning up the files” before production may be construed as obstruction of justice. You should never do this. In the event that any additional notes must be made (which I do not recommend), those notes should be dated with the present date so that it is clear this information was added after the document request. Finally, something as simple as deleting an e-mail may also be construed as obstruction.

Merritt: Any final thoughts?

Wirskye: Overall, if you are under administrative, civil, and certainly a criminal investigation, it is helpful to have counsel to guide you through the process of interacting with the government and potential witnesses so there are no allegations of obstruction.

Sarah Wirskye is a partner with the Dallas law firm of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P.