How to Tell If You're a Target of Parallel Proceedings in a Health Care Fraud Investigation

Parallel proceedings — where civil and criminal investigations run concurrently — have become more prevalent in recent years. In 2012, Attorney General Eric Holder issued a memorandum mandating information sharing between the DOJ’s civil and criminal divisions. In 2014, Assistant Attorney General Leslie R. Caldwell announced that the DOJ’s civil and criminal prosecutors would review all new qui tam complaints simultaneously to determine whether parallel investigations are appropriate.

When health care organizations are investigated for fraud, parallel proceedings are always a concern. If the investigation is not covert, the government investigator may be willing to divulge information on whether the investigation involves both civil and criminal divisions. However, what begins as a civil investigation may evolve into a parallel proceeding.

Some of the tools used by investigators may provide useful insight into whether or not a parallel proceeding is underway, since they allow for information sharing between civil and criminal investigators. These include:

HIPAA Administrative Subpoena. Under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the DOJ has the authority to issue administrative subpoenas when conducting an investigation into potential federal health care law violations. A HIPAA administrative subpoena also provides the authority for sharing the results of an investigation with other health oversight agencies, including the FBI, the U.S. Attorney’s offices and the HHS Office of the Inspector General. This makes HIPAA administrative subpoenas a favored tool in gathering information for parallel proceedings.

Search Warrant. Any evidence obtained via a search warrant may be shared with civil investigators as well.

Unsworn Witness Interviews. Testimony obtained via a grand jury is subject to certain disclosure restrictions, so investigators running a parallel proceeding tend to favor unsworn witness testimony to build a case with both civil and criminal components.

The Cogdell Law Firm is a boutique law firm focusing on large, complex business and criminal financial-related litigation, including white collar criminal defense, securities fraud, health care fraud investigation, criminal appeals and state criminal defense. When results matter most, contact Dan Cogdell at (713) 426-2244 or