(July 3, 2013): Everyone reading this article is likely familiar with the phrase “You have the right to remain silent.” In fact, a citizen’s right to remain silent is considered the cornerstone of an individual’s Fifth Amendment right against self-incrimination. As you may recall, the Fifth Amendment to the Constitution provides:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (emphasis added).
Prior to 1965, an individual’s Fifth Amendment rights were considered to be rather narrow. However, in 1965, the U.S. Supreme Court issued a decision in the case of Griffin v. California, 380 U. S. 609 (1965). In Griffin, the Supreme Court found that the Fifth Amendment did not permit the government to comment on the defendant’s failure to testify at trial. Prior to the issuance of Griffin, if a defendant decided not to take the stand and testify, a prosecutor could readily note that fact and try and argue that the mere fact that the defendant chose not to remain silent is proof of his guilt. The very next year, a decision in the case of Miranda v. Arizona, 384 U.S. 436 (1966) was issued by the Supreme Court. Under Miranda, if a police officer placed an individual in custody, the individual’s right to remain silent would need to first be covered before an interrogation could take place.
Based on these two rulings, do you believe that you have a fairly clear understanding of your Fifth Amendment rights? Good luck with that. . .
I. Recent Case Law Impacting the Fifth Amendment:
More than twenty years ago, on December 18, 1992, two men were shot and killed inside their home in Houston, Texas. The perpetrator fled the scene without being identified, but a neighbor claimed to have observed someone speed off in a dark car after leaving the house. The investigation led police to the home of Mr. Salinas, who they discovered owned a shotgun with the same gauge as the shells found at the crime scene. Mr. Salinas cooperated with the police when he was first questioned. Moreover, he voluntarily agreed to go to the local police station. At that time, Mr. Salinas readily offered his shotgun for ballistics testing. During the questioning, however, Salinas was asked by police whether or not the shells found at the crime scene would match his shotgun, and in response Salinas remained silent and reportedly “tensed up and looked at the floor.” Following the interview, police later arrested the defendant on outstanding traffic warrants. At that time, prosecutors handling the case concluded that there was not enough evidence to charge him with the two murders. After he was released, the police identified a witness and obtained a statement from a man who said he had heard Mr. Salinas confess to the killings. The police were then unable to find Mr. Salinas in order to re-arrest him. In 2007, he was found to be living in Houston under an assumed name.
He was tried for the two murders in 2007. Despite the defendant’s objections, prosecutors cited Mr. Salinas’ reaction to the officer’s question during the 1993 interview as evidence of his guilt. The jury found him guilty, and he was sentenced to 20 years in the penitentiary. Mr. Salinas appealed the conviction with the Texas Court of Appeals, arguing that it was improper and against his Fifth Amendment rights for the prosecutor to cite his silence when asked by the police in 1993 about the shotgun shells. The Texas Court of Appeals disagreed, noting that his “silence” occurred before he was arrested and placed into custody. Therefore, he was not “compelled” within the meaning of the Fifth Amendment. The Texas Court of Criminal Appeals later took up this case and affirmed the lower court’s ruling based on the same reasoning.
When appealed to the U.S. Supreme Court, it held that if Mr. Salinas would have desired to have protection under the Fifth Amendment during his voluntary questioning, he would have had to actively request that his Miranda rights be read to him for the privilege to be invoked. The Supreme Court also overruled Mr. Salinas’ argument that his silence should not have been used in trial, stating that if they only prohibited the use of the petitioner’s mid-interview silence, and not his other responses during the interview (because it could arguably negatively prejudice the jury), then the Court would be placing the prosecution at an unfair disadvantage by allowing evidence helpful to Mr. Salinas while barring evidence helpful to the State of Texas’ prosecution efforts. See Salinas v. Texas, 133 S. Ct. 928 (2013).
II. Impact on Health Care Investigations by Federal Officials and Federal Contractors:
While you may find these cases interesting, you may also be wondering, “Why should I care about this, I am a health care provider, not a criminal?”
A. Unannounced Visits and Interviews by Federal Law Enforcement Agents.
There are multiple Federal and State law enforcement agencies that are constantly investigating potential allegations of health care fraud. In fact, it is quite common for agents of the Department of Health & Human Services, Office of Inspector General (HHS-OIG) to conduct:
- Unannounced or unscheduled visits of your practice, clinic or home health agency.
- Unannounced audits of medical records and claims.
- Requests for interview of current personnel at the workplace or at the employee’s home.
Regardless of the nature of the contact, if you or a member of staff is questioned by a Federal agents, it is important to keep in mind that it is a Federal crime to lie to an HHS-OIG agent, an agent of the Federal Bureau of Investigation (FBI) or any other Federal law enforcement agent. In fact, such an act can constitute a separate Federal crime under 18 U.S.C. 1001. Does that make you think twice about readily answering questions? Well, it should. Nevertheless, you may ask yourself: Will the agent understand what I am trying to say? Will I be able to articulate myself so that the agent doesn’t misinterpret my statements? Will an off-the-cuff remark by me be taken incorrectly? Will we completely misunderstand each other? Regardless of the nature of your concerns, you may be tempted to keep your mouth shut, thereby avoiding any miscommunication. Unfortunately, that could also be problematic.
Don’t forget the holding in Salinas. It is important to keep in mind the fact that health care fraud investigations and any associated questioning would typically be conducted by a Federal agent without an individual being placed into custody (and therefore without any Miranda warnings being provided). Therefore, non-custodial “silence” can, in fact, be used against you if you are subsequently charged and prosecuted for a heath care fraud related crime.
What’s the answer? You very well may be afraid of saying the wrong thing and also afraid of the way it might look if you choose to remain silent, One option would be to advise the agent that you intend to cooperate but would feel more comfortable answering questions if your attorney was present.
Unfortunately, there are a couple of final concerns to consider. As a participating provider in the Medicare program, you have an obligation to “cooperate” in any visit, review or audit conducted by the government or one of its contractors. Therefore, if you are unexpectedly visited by a law enforcement agent or a Medicare contractor, choosing not to speak until your attorney arrives could result in the revocation of your Medicare number. Don’t take this concern lightly, we have seen this happen.
B. Unannounced Visits and Interviews by a CMS Contractor or a “Federal Auditor.”
Over the last year, auditors and staff working for Zone Program Integrity Contractors (ZPICs) have significantly increased the number of unannounced visits and audits of physician practices, clinics and home health agencies. While a ZPIC auditor is not a Federal law enforcement agent (and therefore lies to a ZPIC auditor would not be a separate violation of law), such conduct could be construed as an effort to obstruct a Federal auditor, a crime that can result in five years in the penitentiary under 18 U.S.C. § 1516. Notably, a “Federal auditor” is any person employed for the purpose of conducting an audit or quality assurance inspection on behalf of the Federal government. Arguably, both ZPIC and Recovery Audit Contractor (RAC) auditors could qualify in this regard. Therefore, just because a ZPIC or other CMS contractor is not a law enforcement agent does not mean that you can act or speak in a cavalier fashion.
IV: Final Thoughts:
At the outset, we readily recognize that these are very complex issues. Ultimately, the best course of action is to implement and adhere to an effective Compliance Plan, thereby greatly reducing your likelihood of both an audit and of an error. Nevertheless, despite your best efforts to do the right thing for the right reasons, your practice, clinic, home health agency, hospice or other health care organization may still be visited by an HHS-OIG agent or other Federal auditor who has questions. In such an event, as a Medicare participating provider, you have an obligation to cooperate. You should not lie, should not exaggerate and should not be evasive. If you feel uncomfortable with the questions being presented, ask to speak with your attorney prior to responding. Continue to cooperate and provide access to any requested medical records (after the auditor’s identity has been established, of course). As previously discussed, choosing to remain silent during non-custodial questioning can expose you to a variety of administrative sanctions and could ultimately be used against you if a criminal case is later pursued. We recommend that you contact a qualified health lawyer for assistance if you are ever faced with one of these situations.
Robert W. Liles, J.D., is Managing Partner at the law firm of Liles Parker PLLC, a boutique health law firm representing physicians, group practices, medical clinics, home health agencies, hospices, nursing homes and assisted living facilities around the country. Our attorneys assist health care providers in a wide variety of health law and regulatory projects and cases. Should you have questions regarding the issues discussed above or other health law matters, please feel free to call Robert for a free consultation. He can be reached at: 1 (800) 475-1906.
 368 S. W. 3d 550, 557–559 (2011).
 369 S. W. 3d 176 (2012).