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You are at your practice when the 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 other physicians or 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?
Following are a series of tips and tactics you should 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, says Philip L. Pomerance, a health care lawyer with the Chicago firm of Hinshaw & Culbertson.
- Identify who is conducting the search.
"Your first reaction should be to call your lawyer," says Pomerance. "Next, identify who is conducting the search and on what authority."
Determine which agencies are participating in the search. The search team could include 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.
- 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.
- Ask for a delay.
Next, ask the agent in charge to seal the premises 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.
- 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.
"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.
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.
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."
- Identify the supervising prosecutor and magistrate.
The agents are not directing the legal aspects of the search. That is the job of the prosecutor who obtained the warrant.
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 issues 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."