Ignore a civil investigative demand at your own peril

If you’re a healthcare provider and receive a Civil Investigative Demand (CID), you need to take it very seriously. A CID is a device used to collect information and evidence for use in a healthcare investigation proceeding. CIDs may be issued to physicians, compliance officers, lab owners, nurses, business owners, or anyone who may be connected to an active healthcare fraud or False Claims Act investigation.

The government may use a CID to request information in three ways: oral testimony, responses to written questions(interrogatories), or requests for documentation. Often, those who receive a CID request do not know whether the government is investigating them or merely seeking potential documents from them. Therefore, it is very important to exercise caution when responding to a request.

Is the CID even enforceable?

CIDs are indeed enforceable. The case United States v. Picetti made that clear. It states, “Whenever any person fails to comply with any civil investigative demand … the Attorney General may file, in the district court of the United States for any judicial district in which such person resides, is found, or transacts business, and serve upon such person a petition for an order of such court for the enforcement of the civil investigative demand.” § 3733(j)(1).  

How do I respond appropriately?

Start by obtaining competent counsel. Do not attempt to respond to this request alone! Your attorney should guide you through an appropriate response, following these steps:

1)    Research the information your company has in its possession, custody, or control; identify whether custodians have documents responsive to the CID; and identify the key players at the company.

2)    Have your attorney review the CID’s requests to ensure that the requested information is not overly broad. CIDs tend to be expansive in nature and often cover many different areas. A CID recipient may need to devote many expenses to sift through voluminous documents and send them to the government. Narrowing a CID request is a good approach to managing costs.

3)    Consider whether you may need to object to all or part of the CID. Unlike subpoena requests from opposing parties, the government generally frowns upon blanket objections to the submission of documents. Government officials generally become concerned that the CID recipient is attempting to conceal important information from the government to hide fraudulent behavior. You would be wiser to schedule a conference in person or by telephone with the U.S. Department of Justice (DOJ) attorney assigned to your matter. You can go over your objections during the conference.

4)    Make sure your response documents contain no inaccurate statements. Keep in mind that once the scope has been defined, a CID recipient must be willing to be truthful or be subject to a possible false statement or obstruction of justice charge.

5)    Discuss with your attorney whether there are items that should not be sent due to attorney-client privilege. Does the CID request call for oral testimony? Competent counsel will advise you that, during any subsequent interviews or depositions, the protections and privileges of Fifth Amendment remain available to you should the need arise.

6)    Consider whether any legal action is needed. Remember that the CID recipient has the option, if necessary, to file in the district court and serve upon the DOJ a petition for an order modifying or setting aside the CID. In general, the Federal Rules of Civil Procedure apply to these petitions.

As you can see, you must take the utmost care when you respond to a CID.

Doris O. Dike, Esq., is a healthcare attorney at Friedman & Feiger, LLP, a law firm based in Dallas, Texas. She represents physicians, specialty pharmacies, home health companies, healthcare entrepreneurs, and other healthcare providers nationwide.