Responding to Medicaid Fraud Control Unit Subpoenas

The Medicaid Fraud Control Unit (MFCU) is responsible for investigating and prosecuting health care providers suspected of Medicaid fraud.  It is a division of the New York State Attorney General’s Office.

The MFCU often begins its investigation by serving a subpoena requesting the records of a specific number of patients.  Understand that the investigators are not on your side.  This is not a routine audit.  This is a criminal investigation.  How you respond can mean the difference between an inconvenience and a criminal indictment.

A subpoena indicates that the investigator already believes that you may have committed fraud, and the investigator’s job now is to build a case against you.  Do not think you can talk your way out of this investigation.  The warning you have heard countless times on television is true:  Anything you say to the investigator can and will be used against you in a court of law.

Your first response should be to contact an experienced Medicaid fraud lawyer before responding to the subpoena.  By starting early in the process, your lawyer can review the subpoena to make sure it was properly issued and served.  He can review the requested records to determine what concerns the Medicaid Fraud Control Unit may have.  He can work with you to prepare both your response to the subpoena and your defenses to any potential criminal charges.

Your lawyer will determine what documents must be produced, and what documents should not be produced.  While you must comply with the legal requirements of the subpoena, you are not required to volunteer information or documents that have not been requested.  For example, the Medicaid Fraud Control Unit is only permitted to subpoena records of Medicaid patients.  It may not subpoena the records of any other patients.  An experienced Medicaid fraud lawyer can help you respond to the subpoena to protect your rights.

Investigators often insist on taking your original records and copying them at their office, with the promise that they will return your records in the future.  All too often the health care provider never sees those records again, or only gets them back years later.  While the investigators may insist on taking the original records if you do not have a lawyer, they usually will allow your lawyer to provide copies and return the originals to you.  This is critical to protect your ability to defend against any criminal charges and to continue running your practice.

Finally, you and your staff should not talk to Medicaid fraud investigators.  Period.  The subpoena only allows the investigators to obtain your records.  It does not give them any right to interview you or your staff.  This is true when the subpoena is served, and it continues to be true for the entire course of the investigation.

To schedule a confidential consultation with an experienced Medicaid fraud lawyer, call John Howley, Esq. at (212) 601-2728.