Audio
Episode 5 of the Di Pietro Partners Podcast dives deep into the legal risks healthcare providers face when targeted in audits and investigations. Host Kevin from Borealis Digital Marketing is joined by senior partner Nicole Martell, a Florida healthcare attorney with extensive experience defending physicians and medical practices in both administrative and courtroom proceedings.
In this episode, Nicole outlines the most common types of investigations, what to do if your practice is under scrutiny, how legal counsel can protect your rights, and proactive steps to reduce your risk of becoming a target.
Types of Investigations Healthcare Providers Commonly Face
Healthcare providers may be targeted in various investigations. Some of these investigations are minor while others are potentially career-threatening. Nicole outlines the most frequent scenarios, including:
OIG & CMS Audits – Typically data-driven and focused on Medicare billing patterns, these often begin as routine reviews and escalate.
Board of Medicine Complaints – Triggered by patients or procedural violations, these may lead to administrative hearings affecting licensure.
DEA Investigations – Related to controlled substances prescribing or recordkeeping.
Private Payer Audits & Clawbacks – Insurance companies seeking repayment for perceived overbilling; this may occur even years later.
Whistleblower/FCA Actions – Internal reports alleging fraud that can lead to False Claims Act litigation or federal investigations.
Many of these are triggered by billing anomalies or documentation gaps, not intentional fraud.
What Is a Clawback?
A clawback occurs when a commercial insurer retroactively audits claims and demands repayment for alleged overpayments. Providers are often blindsided and confused especially when the insurer originally processed and approved the claims. Nicole explains that legal counsel can help:
- Validate whether any repayment is actually owed.
- Raise defenses against overreach.
- Protect against broader investigations that could follow.
What To Do When You Receive a Subpoena or Audit Letter
The worst thing a provider can do is panic or try to handle it alone.
Avoid These Mistakes:
- Calling the investigator directly.
- Voluntarily handing over documents without legal review.
- “Cleaning up” records or providing informal explanations.
Instead, do this:
- Contact a healthcare attorney immediately.
- Preserve all documents and communications.
- Clarify the scope and legal basis for the subpoena.
- Treat every conversation as formal and on the record.
How Healthcare Attorneys Defend Providers
Nicole outlines a multi-step strategy when defending healthcare providers:
Conduct an Internal Audit – Review actual documentation not assumptions to assess risks and vulnerabilities before engaging with investigators.
Control the Narrative – Shape how your practice’s actions are presented to regulators with clarity and strategy.
Limit Exposure – Protect privileged information, negotiate the scope of investigations, and manage communications carefully.
Prepare for Statements & Depositions – Ensure that providers give accurate, consistent answers tied directly to documentary evidence.
Implement Corrective Action – If a documentation error is identified, take proactive steps to fix it, retrain staff, and demonstrate compliance.
When Do You Have to Go to Court?
Not all investigations lead to court appearances. Many are administrative or investigative in nature:
Investigative subpoenas are issued before charges or hearings begin.
Board of Medicine complaints are handled through administrative hearings, not civil court.
However, Nicole emphasizes that early legal intervention is crucial, as these proceedings are serious and can escalate quickly.
How to Prevent Investigations in the First Place
Proactive compliance is essential. Here’s what Nicole recommends:
Annual Billing & Coding Audits – Identify red flags internally before they escalate.
Detailed Documentation Protocols – Staff should be trained and systems should ensure documentation is timely and accurate.
Training on Communication & Compliance – Bi-annual refreshers help maintain awareness and best practices.
Address All Payer Disputes Early – Even small disputes can snowball into bigger issues.
Why a Healthcare Lawyer Is Worth the Investment
Many physicians underestimate the value of retaining legal counsel early in their practice. Nicole explains that long-term relationships with experienced healthcare attorneys can:
- Reduce risk of litigation.
- Save time and money during audits.
Ensure compliance programs are effective and current.