Knock knock: Who’s there? Fraud cops; what to do when the joke turns sour
Take these steps if investigators show up at your door
(Editor’s note: This is the first of two articles presenting step-by-step guidance for responding to on-site search warrants, record requests, and subpoenas from federal and state investigators.)
You are working at your desk when the front office receptionist buzzes on the intercom and says a special agent from the U.S. Postal Service, along with a dozen rather stern-looking men and women, have just come in the front door and started searching your medical files and interrogating employees.
Within minutes, the investigators have cut off access to your outside telephone lines and are herding employees into the conference room for questioning. Other agents are loading records, including patient charts, into boxes and taking them away. A third team is trying to obtain access to your computers.
As far as you know, none of the physicians or other staff members in your office has done anything wrong — certainly nothing to warrant being the subject of a federal health care fraud investigation.
What do you do?
"Health care facilities are playing out this nightmarish scene across the nation," says Philip L. Pomerance, a health care lawyer with the Chicago firm of Hinshaw & Culbertson.
All kinds of providers, most of whom never before thought themselves subject to criminal scrutiny, are facing teams of federal and state investigators bearing search warrants, subpoenas, or medical records requests.
"Prosecutors believe that high-profile criminal and civil investigations are cost-effective and have a strong deterrent effect," Pomerance notes. The execution of search warrants — and, to a lesser extent, the delivery of administrative subpoenas with a demand for immediate compliance — allow the government the opportunity to seize critical evidence.
"But equally important, these tactics engender an atmosphere of fear and concern in a targeted provider that prosecutors believe enhances their ability to successfully bring charges. These shock tactics are a critical step in many potential criminal or civil enforcement actions," he notes.
The playing field is rarely level when a team of investigators comes to execute a search warrant. The agents have the benefit of weeks of planning. In contrast, the target of the search is usually caught off-guard.
Again, what do you do? Below are a series of tips and tactics Pomerance suggests you consider if you ever find yourself in the position of having federal agents show up at your front door demanding to search your practice’s premises.
• Identify what is happening and who is doing it.
"Your first reaction should be to call your law yer," says Pomerance. "Next, identify who is conducting the search and on what authority."
Determine which agencies are participating in the search. Because a search team usually consists of agents from various agencies, there could be investigators from the FBI, the Office of the Inspector General, the Railroad Retirement Board, and the U.S. Postal Service, along with agents from the state police and Medicaid office.
"Finding out which agencies are conducting the search is relatively easy. Agents carry business cards, and will give you one if you ask," says Pomerance.
• Identify the agent in charge of the search.
The agent in charge will likely have the original search warrant, and should be the focal point of any discussions you have or complaints you make during a search.
If you object to anything during the search, make your case to the agent in charge and not to the agent whose actions you find objectionable. Remember, individual agents take instructions only from the agent in charge.
The agent in charge also is responsible for securing the premises, beginning the search, clearing the search, and delivering an inventory of all items taken during the search.
• Ask for a delay.
Next, ask the agent in charge to seal the prem ises and delay the search until your lawyer arrives. If the agent says no, "carefully monitor the search, but do not attempt in any way to impede or obstruct it," says Pomerance. "You do not want to draw a charge of obstruction of justice."
Ask the agent in charge not to speak to your employees until the lawyer arrives. While it’s good to make this request, the agent in charge probably will not agree to it.
If the agent in charge starts to proceed with employee interviews, you have the right to tell workers that it is their choice whether they speak to the agents, and that they are under no obligation to answer any questions. (For more on how to help your employees through this situation, see story, p. 99.)
• Identify the type of search document presented.
The strongest authority an investigator can present is a search warrant, issued by a magistrate or judge. The warrant allows investigators access to specific physical premises (which must be identified in the warrant) to seek evidence of specified suspected violations of the law.
An agency subpoena or a records request, on the other hand, only requires that you produce information, but does not allow the officers presenting the document to search your office or home for that information.
"If no search warrant is presented, carefully question the investigators about what they want and when they want it. If your legal counsel is not at the search site, ask for a delay while you consult with your lawyer on the telephone," recommends Pomerance.
"I know of several searches which, in fact, were really just the delivery of a state agency subpoena for medical records. Nonetheless, the agents still demanded immediate compliance and began to search the client’s office and interrogate their employees," says Pomerance.
Questioning authority pays off
"In one such instance, if the provider’s lawyer had not thought to question the agents’ authority, they would have closed the client’s clinic for at least four hours during a busy day while they searched its records." Instead, the agents agreed to let the clinic deliver copies of the records they were looking for within three days of the delivery of the subpoena.
Rarely are state regulatory agencies empowered to issue subpoenas that demand immediate production of records. Therefore, it is important to determine if the document presented by the investigators entitles them to simply search for specific material or to take immediate possession of that material. Remember also that the statute authorizing an agency’s subpoena power often gives the target of the subpoena a "reasonable amount of time" to produce requested records.
Search warrants are a different matter. Whether issued federally or locally, "a search warrant allows the designated officer to search a specifically identified location and seize property that may constitute evidence of the commission of the alleged crimes described in the warrant," says Pomerance. "Except in the rarest cases, the search will continue under a warrant."
Ask the agent in charge for a copy of the search warrant and fax it to your attorney.
"You should then tell the agent in charge that you have asked your attorney to be present during the search, and that he or she is on the way," says Pomerance.
• Identify the supervising prosecutor and magistrate.
The agents, including the agent in charge, are not directing the legal aspects of the search. That is the job of the prosecutor who obtained the warrant, and that person will ultimately determine how the agents respond to claims of privilege, impropriety, or harassment during the search.
It is also important to remember that the prosecutor got the warrant from "a judge or magistrate who has the judicial authority [subject to appeal] on these same issues," says Pomerance.
While it is unlikely that either the prosecutor or the magistrate will be at the search scene, the magistrate is usually reachable if your lawyer has a dispute with the prosecutor and feels the issue needs to be argued immediately.
In federal cases, the name and phone number of the supervising prosecutor (most often an assistant United States attorney) is on the warrant. "If you or your counsel does not have that information, ask the agent in charge for the name and phone number of the prosecutor, and when possible during the search, your lawyer and the agent in charge should place a call to the prosecutor," says Pomerance.
Conflicts can arise at 1 a.m.
It is imperative that you obtain the prosecutor’s home telephone in order to raise issues of privilege, any claims of illegal or improper search, or any other issue affecting the search.
"I have defended searches that went reasonably well for seven hours, and then had a major issue of attorney-client privilege surface at 1 a.m.," says Pomerance. "The agent in charge will not deviate from the search because of your legal objections or claims. Just as the other agents defer to the agent in charge, the agent in charge will defer to the prosecutor. Therefore, an open channel to the prosecutor — and, if necessary, to the magistrate — is critical."
(Editor’s note: Part two of this series will appear in the August issue of Physician’s Payment Update. It will cover records and computers, what is subject to seizure, Fifth Amendment protections against self-incrimination, the physician-patient privilege, attorney-client privilege, and the self-evaluation privilege.)
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