Guest Column: It’s a raid! What to do when the feds are at your door
By Laura Ariane Miller, JD
Nixon Peabody LLP
Washington, DC
The voice on the phone is trembling. It’s an office manager in your health care organization telling you that the FBI and agents from the Office of the Inspector General have just left her office after executing a search warrant. And they already have interviewed a number of employees.
What documents did they take? What did the employees say? And why weren’t you called before the agents left?
For a health care risk manager, the chances of getting such a call or such a visit have never been greater. How you prepare for and deal with such a situation may significantly hurt or help the company’s position in the investigation to follow. It may also prevent (or fail to prevent) company employees from making impulsive or uninformed decisions that could make their lives miserable for years to come.
The use of grand jury or administrative subpoenas to obtain documents or other possible evidence hasn’t gone out of favor with government health care investigators. In fact, there are more subpoenas being served on health care businesses than ever. And more prosecutors and investigators are trying to obtain search warrants from state or federal courts or simply asking company personnel to "consent" to a search of the premises or of certain files.
One could ask whether the "element of surprise" and the "seize first, ask questions later" approach to health care investigations is really fair or is an example of governmental heavy-handedness. But at Department of Justice and Health and Human Services health care fraud conferences, instructors have extolled the virtues of search warrants over subpoenas.
It won’t be a pleasant experience
Search warrants allow the government to cart off file cabinets full of original business records before they can be photocopied or reviewed by the business to make sure that the seized documents are called for in the search warrant. They also enable government agents to interview company employees when they are under stress and do not have counsel present. Only one who has experienced a government search or has been interrogated by federal or state agents really knows how intimidating it can be.
Make no mistake about the tenor of such a visit. Government agents come prepared to seize control quickly, and it is standard procedure to bully staff to dissuade anyone from resisting.
Know this in advance, and make sure your staff know so that if government investigators come to your business, your staff won’t panic. You should be polite, but assert your rights. There is nothing to be gained by hostility or rudeness. In fact, some agents may interpret such conduct as suggesting guilt or liability or, even in an extreme case, obstruction. The goal is to be pleasant but fully aware of your rights and the rights of the business under the law.
This is a difficult balance for the average office clerk, especially when an FBI agent is looming with a badge and a gun. That’s why responsibility should be handed over to the risk manager and legal counsel as soon as possible. The first lesson for anyone confronted with a search warrant should be this: Cooperate, but call the risk manager immediately!
You also should contact your legal counsel to advise you on the situation. Do not try to wing it on your own. Call the person in the legal counsel’s office who has been designated to handle similar situations, or contact outside counsel trained to respond to government investigations. If the only thing you do in preparation for a government visit is designate an in-house or outside counsel to call and have their numbers handy, you will have done much to protect yourself and the business.
Go to the scene and get information
After calling in legal counsel, hustle on down to the scene of the search. Once you are on the scene, you should find out and record the agents’ identities. Ask the agents to identify themselves and their agencies. There are frequently several different agencies involved. Ask to see the credentials they are required to carry. Get their business cards or have someone write down their names, titles, and phone numbers. If you have a sign-in policy for visitors, ask them to sign in.
Whenever you interact with these agents, keep a professional distance and be skeptical. Be warned that these agents, although they may be pleasant, are not your friends. Do not be lulled into a false sense of security just because an agent is taking a friendly tone instead of trying to intimidate. Remember: These agents are most likely there to develop evidence against you and/or your business. Your assumption should be, at least until you get careful advice from counsel, that you must do everything legally possible to protect yourself and/or your company.
Any time agents tell you they want to search the premises or want a particular item or file, ask them if they have a search warrant. If they do, ask for a copy of the warrant — you are entitled to it. The face of the warrant should give a trained eye some clue about the nature of the investigation.
Also, ask for a copy of the affidavit supporting the warrant. Often the issuing court will seal this, and it is unlikely you will get a copy at this point. Ask anyway.
If the agents don’t have a warrant, but ask you or others to "consent" to a search or to provide access to a file or other item, politely but clearly refuse. Tell them you are not free to consent without consulting with legal counsel first. This should be the policy throughout your organization, and all applicable staff should be trained in this basic rule: If an agent asks for a file or to search, the answer is no until they call the risk manager or legal counsel.
If they tell you they will get a search warrant if you do not consent, you or the clerk should tell them again that it is not within your power to consent. Make a record of your refusal and have a witness to the conversation if possible.
Don’t hinder a legal search
However, if the agents have a warrant, do not in any way impede their ability to search. A search warrant is an authorization from the court to enter and search within the parameters approved by the judge. If the agents have a signed warrant to search, don’t obstruct or hinder them. It may be wise to offer them an office or conference room to work in. The validity of the warrant can be challenged later but not now.
If it can be done without impeding the search, attempt to have one or more people monitor what the agents do. Make notes recording which agents search what areas. As best can be determined, record what they examined and where they found it. List what they carry away. If the material is important for the operation of the business, ask to make (under an agent’s supervision) copies of seized originals before the agents depart. Ask to make a backup of any electronically stored information. Ask for a complete written inventory of what has been seized and from where.
Documents that are protected by physician/ patient, attorney/client, or other privilege should have been organized and stored in advance in a manner designed to alert investigators to their special nature.
You also should be prepared for possible publicity. Don’t speak to the media without preparing text with counsel. In addition, contact company public affairs personnel to be alert for inquiries from the press. Statements of any kind to the media should be carefully reviewed by and prepared with legal counsel. What an employee says to the media can come back to haunt the speaker and the business.
Train your staff so they know what to do
Additionally, you should advise employees (preferably in advance) concerning their rights should the government attempt to interview them. Executing a search warrant provides government investigators with an opportunity to attempt to interview employees about the subject matters of the investigation. This is an especially important area to address. Make it known to employees that they are under no duty to answer questions posed by the agents without first consulting with legal counsel. It may be prudent to designate a supervisor trained for the task to be the sole point of contact with the agents during the search. Employees also need to be informed of their rights should government investigators seek to interview them later, whether at the place of business, their home, or elsewhere.
Finally, make sure you and your company are properly prepared for possible government investigations. Training staff how to handle these situations, including search requests and warrants, is simply a matter of smart, responsible management for a health care business. The failure to implement a clear, simple response policy can have catastrophic economic consequences for the business and exposes employees to an unnecessary level of anxiety and risk of prosecution.
Being the target of a search warrant is always a serious matter. The mere fact that it was issued means a judge has already found probable cause to believe wrongdoing has occurred and that the evidence may be found at your business. All is not lost however. Warrant applications are one-sided affairs in which only the government’s view of events is presented. And responding appropriately when the agents come to your door is essential to insure that misinformation doesn’t carry the day.
(Editor’s note: Laura Ariane Miller is a partner with the law firm of Nixon Peabody LLP, where she serves as chair of the Government Investigations and White-Collar Defense practice.)
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Have you missed one of American Health Consultants’ (AHC) recent audio conferences? If so, two upcoming conference replays offer another opportunity to take advantage of excellent continuing education opportunities for your entire facility.
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