Attorney-Client Privilege at Risk in FCA Investigations of Healthcare Organizations

Protecting Confidential Information and Work Product, Avoiding Inadvertent Disclosure and Waiver

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, May 16, 2017
Recorded event now available


This CLE webinar will provide guidance to healthcare counsel for protecting the attorney-client privilege when responding to investigations arising under the False Claims Act (FCA). The panelists will offer their insights into the scope of applicable privileges, how such privileges can be inadvertently waived, and how to best protect these privileges.

Description

Healthcare organizations must protect the confidentiality of sensitive information when providing documents to independent auditors or government investigators. Inadvertently submitting records protected by the attorney-client privilege can result in waiver of the privilege.

The Department of Justice (DOJ) is aggressively enforcing the FCA. Over half of the nearly $5 billion recovered in 2016 came from the healthcare industry. On Mar. 1, 2017, the U.S. District Court for the Middle District of Florida ordered nursing facility operators in an FCA case to pay $347 million (U.S. ex rel. Ruckh v. CMC II L.L.C.). The order followed a jury verdict that found the defendants knowingly submitted false claims to Medicare and Medicaid.

Counsel at both large and small healthcare companies must understand the issues related to preserving and protecting the attorney-client privilege in FCA-related investigations. Our panelists will discuss how counsel can guide a healthcare organization in protecting these privileges during an outside investigation or when conducting an internal investigation.

Listen as our authoritative panel of healthcare attorneys examines recent developments on attorney-client privilege and work product doctrine in healthcare investigations and enforcement. The panel will also address Upjohn issues and the Yates memo, and will offer best practices for preserving and asserting the privilege and work product doctrine.

Outline

  1. Privilege, work product and waiver—recent developments in the healthcare context
  2. Privilege issues in FCA investigations
    1. Halifax and its lessons
    2. Privilege and government investigations
  3. Upjohn issues and the Yates Memo
  4. Preserving the privilege

Benefits

The panel will review these and other key issues:

  • What approaches should healthcare organizations and their counsel implement to identify and protect privileged information?
  • How can a healthcare organization maintain the confidentiality of sensitive information when conducting an internal investigation or during a government investigation?
  • What are the key business and legal best practices for counsel and healthcare organizations to preserve the privilege?

Faculty

Matthew M. Curley, Member
Bass Berry & Sims, Nashville, Tenn.

Mr. Curley represents clients in connection with internal and governmental investigations and related civil and criminal proceedings, particularly within the healthcare industry. His counsels his clients facing inquiries and investigations by federal and state regulators and False Claims Act litigation. His perspective is informed by his prior experience as an Assistant U.S. Attorney with the U.S. Attorney's Office for the Middle District of Tennessee, where he served as Civil Chief and coordinated the Office's civil enforcement efforts in representing the United States and its agencies in healthcare fraud and abuse actions arising under the False Claims Act.

Eric S. Klein, Member
Dykema Gossett, Bloomfield Hills, Mich.

Mr. Klein devotes his practice to representing clients in the healthcare sector with respect to corporate and regulatory issues, including hospitals, physician groups, long-term care facilities, continuing care retirement communities, ambulatory surgery centers, dental service organizations, hospice providers and home health agencies. In particular, Mr. Klein counsels such clients on compliance and reimbursement issues as well as health facility and physician practice acquisitions and other changes of ownership, including related licensure and Medicare/Medicaid certification matters.

Cynthia Wisner, Assistant General Counsel
Trinity Health, Detroit

Ms. Wisner specializes in corporate healthcare issues, including Stark and corporate integrity and compliance. She served six years on the board of the American Health Lawyers Association. Ms. Wisner is an adjunct professor of health law at the University of Detroit Mercy and served as vice president and general counsel for Detroit Medical Center.



Webinar

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Program Materials

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Program Materials

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CLE Credits

Many states grant CLE credits for on-demand streaming audio programs and recorded events. Our programs are pre-approved in many states. Refer to our state CLE map for state-specific information.

Customer Reviews

The teleconference was efficient with a well-focused agenda. The speakers really seem to know the material and communicated it clearly.

Owen Hughes

Pfizer

The speakers were well prepared and were able to explain the information in a clear and concise manner.

Ayala Schwartz

Columbia University Clinical Trials Office

The program was very to the point — no fluff.

Brian McNamara

Wright Lindsey & Jennings

I appreciated that the program’s content was current and had great speakers.

Yvette Rhodes

Fowler White Boggs

The speakers were well prepared and knowledgeable.

Kathleem Murphy

San Francisco General Hospital

Health Law Advisory Board

Lowell C. Brown

Partner

Arent Fox

Jennifer L. Evans

Shareholder

Polsinelli

Ryan S. Johnson

Shareholder

Fredrikson & Byron

Gina M. Kastel

Partner

Faegre Baker Daniels

Karen S. Lovitch

Member

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo

David A. Manko

Partner

Proskauer Rose

John J. Miles

Senior Counsel

Baker Donelson

C. Elizabeth O'Keeffe

Counsel

Wyatt, Tarrant & Combs

J. Peter Rich

Partner

McDermott Will & Emery

Donald H. Romano

Of Counsel

Foley & Lardner

Judith A. Waltz

Partner

Foley & Lardner

John R. Washlick

Shareholder

Buchanan Ingersoll & Rooney

Jesse A. Witten

Partner

Drinker Biddle & Reath

Our Guarantee

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