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Few criminal investigations end up going to trial. But unless health care attorneys prepare the case with that end in mind, they risk losing much of their bargaining power, argues Robert Griffith, a Boston-based health care attorney who has handled more than 275 fraud and abuse investigations in 18 different states and federal jurisdictions.
"That is a goal we all aim for in preparation even though we may not realize the trial itself," he explains. Short of that, Griffith says the primary goal of health care attorneys involved in criminal cases is to stop the indictment and/or convert them to a civil case. But how to accomplish that is the million-dollar question.
Prosecutors seek the path of least resistance, Griffith says. "When you want to slow the flow of electricity, you use resistors.’" And defense attorneys must do the same thing with prosecutors.
Here are some examples of how to install "resistors" and set the pace of the investigation:
s Control the flow or flood of information. Griffith says that successful health care fraud defense tactics typically involve "numerous attacks on multiple planes across a broad front." If the weapon is a wholesale attack on documents that the government believes may be relevant, he says preliminary preparation might involve a detailed analysis and listing of every record or category of record using various software programs.
Other times, it may pay to produce far more than the government wants. Griffith says it helps if the documents are accompanied by a letter or memorandum explaining the exculpatory nature of the documents and their relevance to the investigation along with a demand that they be introduced to the grand jury in a meaningful manner.
s Control the work schedule. "There are ways that you can affect the work schedule of the U.S. government," says Griffith. He says the most creative counsel knows how to focus the government on issues that are relevant to the defense instead of simply responding to government requests or blindly following its lead. "Choosing the appropriate time to raise certain legal and factual issues is often an art," he says. New facts to explore, additional witnesses to interview, documents to obtain, and issues to confront are all tools that should be used.
s Explore the testimony. "When you thoroughly explore a witness’ testimony, you find all sorts of little problems that the government would rather ignore," says Griffith.
"The more issues and facts there are to deal with, the more difficult the case," he says. "They won’t be cooking a quarter-pound burger, they will be cooking a seven-pound roast." When that happens, the possibilities for compromise expand because most prosecutors tend to shy away from large, complex cases, especially at the state or local level where scarce resources limit the total number of possible prosecutions, he adds.
s Control the investigative environment. Griffith says it is a mistake to rely upon the notes and investigatory documents produced by government investigators to establish the facts. "Many factual assertions are unsupportable when closely examined," he says.
Probing every nuance forces the government to do the same and often eliminates certain allegations before they become part of the charging documents.
In previous investigations, Griffith says he has provided grand jury investigations with more than 200 sworn affidavits and arranged for tours of medical facilities and demonstrations of laboratory experiments as well as the routine billing process in order to dissuade the government from charging particular clients. "In the vast number of cases, it was a successful tactic," he says.
s Maximize distinctions. Griffith says he likes to break down facts in order to obtain the desired tempo and nuance at trial. For example, to show how belated the government’s response to a client’s request for information may have been, he asks the witness a series of questions. "CMS did not respond to this letter within two to three weeks," Griffith might say. "In fact, it took CMS one year and two weeks or 379 days or 54 weeks to respond, isn’t that also true?"
Asking a series of questions will give the jury a better sense of the government’s delayed response than simply pointing out that the government failed to respond for one year, he explains.