What Do You Do If the HIPAA S**t Hits Your Fan and the Feds Come after You?: HIPAA & HITECH Act Blog by Jonathan P. Tomes

Jon Tomes

Many of you will (hopefully) never need the guidance in this blog post. And I have never read a HIPAA blog post or article talking about this guidance in relation to HIPAA. But an article that I read on what Americans need to know if they are ever unfairly arrested convinced me that, for some of my readers, this post might be the most important HIPAA blog post ever. Beware of HIPAA and the Feds.

Let’s say, for example, that you have a major HIPAA breach and you are not politically connected to the party in power. Can you rule out the F.B.I. sending a swat team to arrest you for a violation of HIPAA’s criminal statute, 42 U.S.C. § 1320d-6, in your home before dawn? With a search warrant to trash your home and office?

 Sounds way out, right? Perhaps not. What about the predawn F.B.I. arrest of Roger Stone, a Trump strategist? The Washington Examiner headline about this law enforcement overreaction was, “The F.B.I.’s ridiculous riot gear and predawn raid on Roger Stone was excessive and unnecessary.” Quin Hillyer, title as above, Jan. 25, 2019, at https://www.washingtonexaminer.com/news/i-hope-he-roasts-in-hell-donna-brazile-says-son-of-a-bitch-roger-stone-got-what-he-deserved.

 And what about the arrest of General Flynn? He wasn’t prosecuted for anything that he had allegedly done. He was prosecuted for allegedly having lied about the crime that he hadn’t done and had pled guilty to (although the F.B.I. agents who interrogated him didn’t think that he had lied) because he didn’t have the resources to fight off the might and majesty of the Federal Government.

General Flynn committed a “process crime,” the term for when the government gets you on alleged interference—that is, false testimony and the like—in the investigation of your non-criminal behavior. Think Martha Stewart. She didn’t go to jail for insider trading. She went to jail because she offered a defense that the government didn’t believe was true and because she didn’t invoke her right against self-incrimination and shut up, and was found to have committed a process crime.

But these are big celebrity cases, right? And they aren’t going to come after a clinician or director of health information management or office manager of a small or mid-size practice, right? Good luck with that theory.

 I remember when a mental health professional called me up because she was being prosecuted for Medicare fraud for upcoding―that is, assigning a code that got a greater reimbursement than was proper for the service rendered. I had a coding expert witness in my stable of resources, and it looked to him as if the therapist had used the code that she had thought was the closest to the somewhat unique therapy that she had employed (which worked) and that she had had no criminal intent to upcode.

But the government had offered her a plea bargain with no jail time when she faced five years’ imprisonment for each such coding. And I told her that her defense would, even if she found someone cheaper than me, cost more than $50,000, which would necessarily include the expert witness fees of the coding expert. She didn’t have that kind of money and caved to avoid prison. But now, as a Medicare fraud convicted felon, she could no longer accept government reimbursement. And I had another phone call only a few months later from another clinician with about the same situation and result.

 Don’t think that an innocent person can be charged with a HIPAA crime? Well, consider the case of Dr. Richard Alan Kaye, a psychiatrist. Kaye was charged with three counts of violating HIPAA by calling the supervisors of a former patient and telling them that he believed that she could be a danger to herself or others. The federal judge dismissed the charges. HIPAA allows disclosures to prevent or lessen a serious and imminent threat to the health or safety of the patient or others when the disclosure is to a person or persons reasonably able to prevent or lessen the threat. 45 C.F.R. § 164.512(j)(1)(i). Although the doctor was vindicated, consider the cost of his defense and the mental anguish that he suffered.

The takeaway is that, if the government gets you in its cross-hairs, you are screwed.

But you don’t have to make it easy for them. Don’t let them get you for a process claim when you didn’t commit the underlying crime that they are investigating.

 If you are approached at work or elsewhere by one or more law enforcement officials, the first thing to do is to verify that they are law enforcement officials. Anyone, including identity thieves, can say that they are from the sheriff’s office, and so forth. That doesn’t mean that they are, but many people will cooperate just because the persons are in uniform and/or say that they are law enforcement officers of some type. They may flash a badge or some other form of what they call credentials. For many people, this is enough. It isn’t. You must ask to inspect the badge or laminated card or whatever. If you have any doubt and unless the sheriff’s deputy is your neighbor and you know that he or she is for real, you should attempt to verify his or her status. If the alleged officer says that he or she is an F.B.I. agent, you should call the local F.B.I. Office (not using the phone number that they provide you when someone likely from India or Pakistan will attest to their status) to verify their identity.

 If they show you a search warrant, ask for time to have your lawyer come and review it. If they won’t give that time to you, do not commit a process crime by resisting. And don’t fall for the “you might as well consent because we’ve got probable cause for a warrant” ploy. When I was a military judge, I denied a warrant on several occasions because they didn’t have probable cause. If they’ve got probable cause, let them get the warrant.

The law is that the government can lie to you about whether your friends have already confessed so you might as well, too, in order to avoid a stiffer sentence and the like. But they can’t (legally) lie to get you to waive your Constitutional rights. Not that some of them won’t lie.

 One recent article noted that it is good to show respect and some deference to law enforcement officers “but don’t go so far as to be a suck-up either. Being chatty is a bad idea always. Overly cooperative or overly interested people draw suspicion to themselves in criminal investigations.” Lee Bellinger, “Just in Case Impeachment Forces Win: What Liberty Loving Americans Need to Know If You Are Ever Unfairly Arrested,” Off-Grid Confidential, vol. 14, no. 11, November 2013.

Do not answer questions about the alleged offense without demanding to talk to a lawyer. Even presenting a valid defense can lead to a conviction, often a process crime. In one case, I defended a soldier accused of rape. He waived his Miranda and Article 32 Uniform Code of Military Justice rights to remain silent, to refuse to answer questions, and to have a lawyer present during questioning if, after having consulted with the lawyer, he agreed to be interviewed. The agent seemed very nice and sympathetic and said that he knew that any intercourse was probably consensual. So, my client consented to voluntary sexual intercourse with the alleged victim. Well, the only problem was that she couldn’t identify him. But with his having admitted to having had sex with her, that solved that problem for the prosecutor, and my client ended up facing a life sentence for rape. I managed to win the case, but it took some lawyering, and I doubt that he enjoyed the pretrial confinement and the stress of facing a life sentence for not keeping his mouth shut.

Mr. Bellinger points out that the media are not your friend and that law enforcement will encourage them to make you look like the worst criminal since Billy the Kid. He suggests that you don’t hide your face. Law enforcement may say that you need to for your protection. That’s because they want you to look guilty. So don’t cover your face or hang your head as if in shame. Look straight at the cameras and try not to look guilty.

 Don’t answer any press questions. If you have to say something, just say, “I’m innocent.” Nothing else. That’s the only thing that you want in the news clip. They will edit that out and leave in something else you may have said that makes you look guilty.

If you are jailed, even for a short time until you are released on your own recognizance or make bail, don’t talk to others in the cell. They will sell you out in a nanosecond to get a better plea bargain or the charges against them dropped.

Also, make certain that you do not destroy any PHI or anything else that might be relevant to the case. You are not a former Secretary of State and Presidential candidate who can “bleach” your hard drives and apparently get away with it.

If they have a search warrant or search anyway, ask for an inventory of what they seized. You have a right to one, but if you don’t ask for it, you are unlikely to get it. Regardless, try to take notes of what they search and what they seize (if they will let you).

 And don’t rush to enter into a plea bargain without understanding all of the collateral consequences—that is, loss of a license, inability to get federal reimbursement, loss of ability to vote or get a concealed carry permit, and the like.

Hopefully, you will never need this advice. But it could be very valuable information to have and perhaps share with your colleagues and staff.

Alice here: The only thing that I am trying to sell to you today is Jon Tomes. We truly hope that none of the above ever happens to you, but, God forbid, if it does, contact Jon immediately at jon@veteranspress.com or 816-527-3858. He is the best attorney I have ever known. And I went to law school in and used to practice law in Chicago. Jon used to be a military judge, so he truly knows how to navigate a federal regulation. He used to be a military intelligence officer―read spy―in Germany during the Cold War after he had been an infantry platoon leader in Vietnam and before he went to law school, so he knows how HIPAA, the FBI, and the CIA work. Jon’s not cheap, but he’s reasonable and worth every penny. And he may be of even more help to you as your expert witness for your attorney, especially for HIPAA matters. Again, not cheap, but the best and worth every penny. In the meantime, maybe we should persuade Jon to draft a policy/procedure template for you to implement if your risk analysis shows that it would be reasonable and appropriate for your organization to learn how to respond to the Feds regarding HIPAA or any other matter. If you like that idea, please let us [read Jon] know.

As always, thanks for reading Jon’s blog, buying his books and other HIPAA compliance tools, attending our seminars and webinars, and hiring Jon for HIPAA consulting and training. We wish you every success with your HIPAA compliance efforts. And Happy Thanksgiving!

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