5 Urgent Steps to Take Today If You're Under Investigation for Healthcare Fraud

Step One: Immediately Cease All Self-Investigative Communications—The Trap of the "Voluntary Interview"

In my 25 years as a federal prosecutor, I witnessed more healthcare professionals incriminate themselves in the first thirty minutes of a "voluntary" interview than in any other phase of an investigation. When you receive a letter from the Department of Health and Human Services Office of Inspector General, a phone call from an FBI task force officer, or even a civil investigative demand from the Civil Division of a U.S. Attorney's Office, your instinct will be to cooperate, explain, and demonstrate your innocence. That instinct is precisely what the government relies upon to build its case. Under 18 U.S.C. § 1347, healthcare fraud requires proof of knowing and willful execution of a scheme to defraud any healthcare benefit program, and the government's burden is to show intent—often proven through your own words during an unrepresented interview.

I have personally debriefed dozens of targets who believed they could "clear things up" by meeting with agents, only to find themselves facing a federal indictment based on inconsistent statements or inadvertent admissions. The Federal Rules of Evidence permit the government to introduce your statements as party-opponent admissions under Rule 801(d)(2)(A), and those statements are almost always admissible regardless of whether you were under oath or even read your Miranda rights. Remember, a "voluntary interview" is not a friendly conversation; it is an evidence-gathering operation conducted by trained investigators who have already reviewed your billing patterns, patient records, and claims data. Every word you utter becomes a data point in their prosecution memorandum.

Your first urgent step is to politely but firmly decline any invitation to discuss the matter without counsel. The appropriate response is: "I am willing to cooperate fully, but I will do so only through my attorney. Please direct all further communications to my legal counsel." This is not an admission of guilt; it is an exercise of your constitutional rights under the Fifth and Sixth Amendments. In my experience, agents will push back, suggesting that your refusal to speak indicates consciousness of guilt. That is a psychological tactic, not a legal reality. Federal prosecutors are trained to exploit any inconsistency between your initial statements and later testimony, so silence now preserves your options later.

Furthermore, do not fall into the trap of writing explanatory letters to Medicare administrative contractors, Medicaid program integrity units, or private insurance company special investigation units. These entities routinely share their findings with the Department of Justice, and any explanation you provide—however innocent—can be characterized as a false statement under 18 U.S.C. § 1001 if the government later disagrees with your version of events. I have seen well-meaning physicians and practice administrators inadvertently create federal liability by sending detailed narratives that contradicted billing codes, leading to charges of making false statements in healthcare matters. The safest course is to direct all inquiries to your defense attorney, who can negotiate the scope and timing of any information exchange.

Step Two: Secure and Preserve Every Piece of Evidence—Even the Documents That Make You Uncomfortable

Once you suspect you are under investigation for healthcare fraud, federal law imposes an affirmative duty to preserve all potentially relevant documents, electronic records, and communications. Under 18 U.S.C. § 1519, anyone who knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any federal department or agency faces up to 20 years in federal prison. This statute applies even if the destruction occurs before a subpoena is issued, as long as you have notice of a pending investigation. The moment you receive a target letter, a civil investigative demand, or even an informal inquiry from a government agent, the preservation clock starts ticking.

In my years as a prosecutor, I secured convictions against healthcare executives not for the underlying fraud but for destroying spreadsheets and email chains that the government had not yet subpoenaed. The government's theory was straightforward: the defendants knew an investigation was imminent, and their deletion of files demonstrated consciousness of guilt. The Sarbanes-Oxley Act's recordkeeping provisions, codified in part at 18 U.S.C. § 1519, were specifically designed to criminalize such conduct, and federal judges routinely impose severe sentences for obstruction in healthcare fraud cases. Do not assume that routine document retention policies or automatic deletion protocols will protect you; once you have notice of an investigation, you must take affirmative steps to halt any destruction.

Your second urgent step is to issue a written litigation hold to every employee, contractor, and third-party vendor who may possess relevant records. This hold must cover all billing records, patient charts, electronic health records, time logs, referral correspondence, marketing materials, and internal communications regarding coding and reimbursement. In particular, preserve all metadata, audit trails, and version histories within your electronic health record system, as the government frequently uses these digital footprints to establish patterns of intentional upcoding or unbundling. I recommend engaging a forensic data expert to image hard drives and capture server logs before any employee leaves the practice or any system is upgraded.

Additionally, do not make the mistake of "cleaning up" patient files or adding late entries to medical records. Under 42 C.F.R. § 482.24(c), medical records must be accurate, complete, and contemporaneous. Any post-hoc alteration—even if intended to correct a genuine error—can be construed as an intent to deceive under the False Claims Act. I have defended cases where a single late entry in a progress note transformed a simple coding error into a federal fraud charge. Preserve everything exactly as it exists today, and do not permit any employee to modify or delete any record, regardless of how minor the change may seem. If a legitimate correction is necessary, document it separately with a clear explanation of the date, time, and reason for the change, and preserve the original entry.

Step Three: Conduct a Privileged Internal Assessment—But Only Through Counsel

Many healthcare providers make the critical error of conducting their own internal investigation before retaining counsel, believing that they can identify and correct problems without legal exposure. This is a dangerous misunderstanding of how the attorney-client privilege and the work-product doctrine operate in federal criminal investigations. Under Upjohn Co. v. United States, 449 U.S. 383 (1981), the attorney-client privilege extends to communications between corporate counsel and employees when the purpose is to obtain legal advice for the organization. However, if you conduct the same investigation without an attorney directing it, those communications are not privileged and can be compelled by a grand jury subpoena. The government loves nothing more than obtaining a target's own internal audit report, complete with highlighted problem areas and corrective action plans, because it provides a roadmap for the prosecution.

Your third urgent step is to retain experienced federal criminal defense counsel immediately and direct all internal fact-gathering through that counsel. Your attorney can conduct a privileged interview of key employees, review billing data under the protection of the work-product doctrine, and provide you with a candid assessment of your exposure without creating discoverable evidence. In my practice, I often engage outside coding experts and forensic accountants under a Kovel letter—named after United States v. Kovel, 296 F.2d 918 (2d Cir. 1961)—which extends the attorney-client privilege to consultants who are assisting counsel in rendering legal advice. This allows us to identify vulnerabilities without handing the government a self-incriminating dossier.

During this privileged assessment, your attorney should evaluate several specific areas: (1) whether your billing patterns show statistically significant deviations from peers, which the government often uses as circumstantial evidence of intent under the "knowing" element of 18 U.S.C. § 1347; (2) whether your documentation supports the medical necessity of services billed, particularly for evaluation and management codes, durable medical equipment, and diagnostic testing; (3) whether any referral relationships violate the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), or the Stark Law, 42 U.S.C. § 1395nn; and (4) whether any employees or contractors have made statements to government agents that could be used against you. This analysis must be thorough and unflinching, as partial information can lead to disastrous strategic decisions.

I cannot overstate the importance of conducting this assessment before the government executes a search warrant or serves a grand jury subpoena. Once those events occur, the government controls the evidentiary landscape, and your ability to present a coherent defense becomes exponentially more difficult. In my experience, clients who engage counsel early and conduct a privileged internal review are far better positioned to negotiate a declination, a civil resolution, or a favorable plea agreement than those who wait until charges are filed. The Department of Justice's Healthcare Fraud Unit evaluates cooperation credit under USSG § 3E1.1 and the Principles of Federal Prosecution, and early, genuine cooperation—directed by counsel—can significantly reduce sentencing exposure.

Step Four: Audit Your Compliance Program Against the Seven Elements of an Effective Program

Federal sentencing guidelines and the U.S. Sentencing Commission's Chapter Eight provisions reward organizations that have in place an effective compliance and ethics program at the time of the alleged offense. Under USSG § 8B2.1, an effective program must include seven specific elements: (1) standards and procedures to prevent and detect criminal conduct; (2) oversight by high-level personnel; (3) due diligence in delegating authority; (4) effective communication and training; (5) monitoring and auditing systems; (6) consistent enforcement of disciplinary measures; and (7) reasonable steps to respond to and prevent further misconduct. If your practice or organization can demonstrate that these elements were in place and functioning, you may be able to argue for a reduced sentence or even a declination of prosecution under the Justice Manual § 9-28.300.

Your fourth urgent step is to work with your attorney to conduct a rapid but thorough audit of your existing compliance infrastructure. This is not the time to implement a new program—that would be too late for the underlying conduct—but it is the time to document what already existed. Gather your written compliance policies, training records, attestation forms, hotline reports, and audit logs. If you have not conducted regular external audits of your billing practices, that absence will be noted by prosecutors. However, if you can show that you had a robust compliance program in place, including annual training on the False Claims Act and the Anti-Kickback Statute, you may mitigate your exposure significantly.

In particular, focus on whether your practice had a mechanism for employees to report potential compliance concerns anonymously and without fear of retaliation. Under the Affordable Care Act's section 6402, healthcare providers are required to establish compliance programs as a condition of participation in federal healthcare programs, and the absence of such a program can itself be used as evidence of reckless disregard for regulatory requirements. I have seen cases where the government's primary argument for "knowing" conduct under the False Claims Act was the complete absence of any compliance infrastructure, which the court permitted as circumstantial evidence of intentional ignorance.

Furthermore, if your audit reveals any actual overpayments or billing errors, you must consider whether to self-disclose under the HHS-OIG Self-Disclosure Protocol or the CMS Voluntary Self-Referral Disclosure Protocol. Self-disclosure is a complex strategic decision that should only be made after careful consultation with counsel, as it can trigger a full-scale investigation even for minor errors. However, under 42 U.S.C. § 1320a-7k(d), timely returned overpayments can reduce or eliminate False Claims Act liability. In my practice, I have successfully negotiated civil settlements for clients who proactively disclosed overpayments before the government discovered them, often resulting in significantly lower damages multipliers than would have been imposed in a contested case.

Step Five: Prepare for the Worst While Negotiating for the Best—Asset Protection and Crisis Communication

Federal healthcare fraud investigations frequently involve simultaneous asset forfeiture actions under 18 U.S.C. § 982, which allows the government to seek forfeiture of any property derived from or used to facilitate the fraud. In my experience, the government often files restraining orders or seizure warrants within days of unsealing an indictment, freezing bank accounts, retirement funds, and even medical practices. Your fifth urgent step is to work with your attorney and a qualified asset protection specialist to understand your exposure and take lawful steps to preserve your ability to fund your defense and maintain your operations. This does not mean hiding assets—that would constitute criminal contempt or money laundering under 18 U.S.C. § 1956—but it does mean understanding which assets are at risk and structuring your affairs accordingly.

You should also prepare a crisis communication plan for your patients, referral sources, and business partners. Healthcare fraud investigations often become public through media leaks, grand jury subpoenas served on patients, or the execution of search warrants at your practice. Patients who receive government questionnaires about your services may become confused or frightened, and referral sources may distance themselves from your practice. Work with your attorney to draft a HIPAA-compliant communication that acknowledges the investigation without admitting wrongdoing, and designate a single spokesperson to handle all inquiries. Under HIPAA's privacy rule at 45 C.F.R. § 164.512, you may disclose limited information to patients about an investigation if necessary to comply with legal process or to prevent a serious threat to health or safety.

Additionally, consider whether you need to notify your malpractice carrier, your business partners, and your lenders. Many professional liability policies have provisions requiring prompt notice of any investigation that could lead to a claim, and failure to notify could void coverage. Similarly, if you participate in managed care contracts or have hospital privileges, your agreements may require disclosure of any government investigation. Your attorney can help you navigate these disclosure obligations without waiving privilege or creating additional liability. In my practice, I have seen clients lose their hospital privileges or managed care contracts because they failed to disclose an investigation in a timely manner, compounding their legal and financial problems.

Finally, do not underestimate the emotional and psychological toll of being under federal investigation. Healthcare fraud carries a statutory maximum of 10 years per count under 18 U.S.C. § 1347, and the Sentencing Guidelines impose significant prison terms for even moderate loss amounts. I have seen brilliant, compassionate physicians and administrators become paralyzed by fear, making irrational decisions that harm their cases. Your attorney should be your guide and your shield, but you must also take care of your own mental health. Engage a therapist who understands the stress of white-collar criminal investigations, and lean on trusted family members and colleagues who can provide support without compromising your legal strategy. The road ahead is arduous, but with prompt, decisive action and experienced counsel, you can navigate it.

If you are under investigation for healthcare fraud, the decisions you make in the next 72 hours will determine the trajectory of your case for years to come. I have seen too many healthcare professionals lose their licenses, their savings, and their freedom because they waited to act, hoping the investigation would go away. It will not. The Department of Justice recovered over $2.2 billion in healthcare fraud judgments and settlements in fiscal year 2023 alone, and the government's resources for pursuing these cases are virtually unlimited. You need a defense team that understands federal criminal procedure, the healthcare regulatory framework, and the psychology of federal prosecutors. Contact my office today for a confidential, privileged consultation. We will review your situation, advise you on your immediate steps, and begin building a defense strategy designed to protect your liberty, your