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

Program Materials

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.

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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
Matthew M. Curley

Member
Bass Berry & Sims

Mr. Curley represents clients in connection with internal and governmental investigations and related civil and...  |  Read More

Eric S. Klein
Eric S. Klein

Member
Dykema Gossett

Mr. Klein devotes his practice to representing clients in the healthcare sector with respect to corporate and...  |  Read More

Cynthia Wisner
Cynthia Wisner
Assistant General Counsel
Trinity Health

Ms. Wisner specializes in corporate healthcare issues, including Stark and corporate integrity and compliance. She...  |  Read More