Paul J. Fishman
WAIKOLOA, Hawaii — Lying, cheating, stealing and conflicts of interest in the health care space are all areas of interest to federal investigators.
In a presentation at Hawaiian Eye 2019, former U.S. New Jersey State Attorney Paul J. Fishman, JD, pulled back the curtain on the elements of health care investigations from a federal prosecutor’s point of view.
Health care cases involve the same kinds of potential malfeasance and issues as any white-collar investigation, he said.
“People take money in all walks of life that they might not be entitled to. They ask for things or get things that they are not entitled to get. It might be cheating, it might be stealing, it might be fraud,” he said. Or, it might not be.
Before federal prosecutors initiate an investigation, he said, there are five questions to consider: What happened? Who was responsible? Is it a crime? Can it be proven? Should it be a federal case?
Fishman, now a partner at Arnold & Porter, said, “Investigations start when someone in the government, an agent or a prosecutor, gets information that suggests that somebody either definitely or might have committed a crime.”
From instigation to conclusion, an investigation changes.
“Investigations are living organisms. They morph and they evolve, and they change direction,” Fishman said.
Every white-collar case starts with serving grand jury subpoenas to collect evidence, he said. Efforts to obtain tax records also are common. Besides being an indicator of tax evasion, tax records can indicate other financial interests, which might yield leads for further investigation in a different direction. And, an essential avenue of investigation in white-collar cases is to acquire emails and text messages.
“Yes, you can delete them. You can try. But they often live a lot longer in other places than on your phone or on your computer or in your Gmail account, and you need to know that,” he said.
Prosecutors obtain those electronic renderings via search warrant or subpoena, or simply by someone else handing them over.
“A search warrant for that is not enormously difficult. All you have to do is show that there is probable cause that there is evidence of a federal crime in that email account,“ he said.
Another common investigative tool is to offer immunity for cooperation.
“It is a rare prosecution case when somebody hasn’t gotten immunity,” he said. Immunity stipulates a person will not be prosecuted for the content of what he or she says, but that person must cooperate with the prosecution, sometimes to the extent of wearing “a wire.”
“Wire taps? We have that, too,” he said.
Fishman’s tip for health care practitioners who find themselves faced with a phone call from an investigator, no matter their role, is this: Take the call and call a lawyer.
As well, he suggested health care practitioners be mindful about how emails and texts are used. They live on, and sometimes they live on with different inference than what was intended.
“I’m not saying don’t email. I’m not saying don’t text,” he said. “I am saying think about what you do. Think about what you say. Think about how you conduct yourselves.” – by Patricia Nale, ELS
Reference: Fishman PJ. Behind the DOJ curtain. Presented at: Hawaiian Eye; Jan. 19-25, 2019; Waikoloa, Hawaii.
Disclosures: Fishman reports no relevant financial disclosures.