Your rights if the Feds come knocking

September 19, 2003

You may not have to turn over everything they ask for, and you don't have to answer questions.

 

Your rights if the Feds come knocking

Jump to:Choose article section... A raid could put you out of business Preparing for the worst can limit its impact What your lawyer can do to protect you

You may not have to turn over everything they ask for, and you don't have to answer questions.

By William Lawler III, JD and Gary Eiland, JD

It's a typical Monday morning at your office. Everything seems normal—until the front door suddenly bursts open and armed FBI agents swarm in. They flash their badges and show a search warrant, demanding immediate access to your medical and financial records. Soon they've loaded your file cabinets and computers onto a truck and sped off, leaving your office in a state of panic.

Think this scenario couldn't happen to you? Don't be so sure. Although it's still not a common occurrence, it's happening more often, as the federal government becomes increasingly aggressive in investigating and prosecuting health care fraud. Last year alone, federal agents served search warrants on doctors' offices and clinics in California, Florida, Illinois, Michigan, Missouri, New York, Tennessee, and Washington. Some of these searches grew out of false claims or "whistle blower" suits brought by practice employees; others resulted from unsolicited tips and undercover investigations.

To be sure, some practices do engage in fraud and may well deserve to be investigated. But even honest practices may face a search and seizure raid based on a telephone tip from a disgruntled employee trying to settle an old score. To get a search warrant, authorities don't need actual proof of wrongdoing; merely "credible" allegations may be sufficient. Many searches come up empty-handed or don't result in prosecution. But successful or not, they all create havoc for the practices that are raided.

A raid could put you out of business

Although there may be little you can do to prevent a search-and-seizure raid, it pays to be prepared, and to know your legal rights if federal agents show up at your office. If you and your staff have made proper preparations, you can minimize the resulting disruption to your practice. Actually, "disruption" is a mild description of the potential effect of such a raid, since without your files, charts, and computers, you could be pretty much out of business.

For the prosecutor, a search warrant is an attractive investigative tool because it has the advantages of speed, surprise, control, and intimidation. Not only does it empower the agents to show up without warning, search the office, and seize any evidence of criminal activity, but it also gives them an opportunity to question any employees who may be around at the time of the raid.

There are some limits on the power of a search warrant, however, starting with the Fourth Amendment, which specifically prohibits "unreasonable" searches and seizures. To convince a judge to issue a warrant, the prosecutor must show "probable cause" to suspect criminal activity. The warrant must identify the premises to be searched and the items to be seized. In practice, however, such descriptions are often generic and broad, and some raids amount to fishing expeditions conducted in hope of finding incriminating evidence.

Typically the search must occur within 10 days of the warrant's issue, between 6 a.m. and 10 p.m. Most searches take place during normal business hours, however, when employees are likely to be available for questioning. Although the search warrant does not compel them to answer the agents' questions, they might innocently do so, perhaps providing potentially damaging information. If the office is unoccupied, the warrant authorizes agents to use force to enter the building, if necessary, although that's not common. The agents are required to produce a copy of their warrant. If they seize records or property, they must also provide an inventory and receipt for the items they remove.

At the prosecutor's request, the judge may seal the warrant, the supporting affidavit, and the inventory of seized property, to prevent public disclosure of an ongoing investigation. But that seal also prevents you or your lawyer from examining the affidavit—which means you won't know what allegations about your practice prompted the search.

Preparing for the worst can limit its impact

Paranoid as this may sound, every practice should have a plan of action to be implemented in the event of a federal raid. Here are a few important steps to follow:

Clearly label all privileged documents—particularly any communications with your lawyer—and segregate them from other files, if possible. Such documents are usually protected from a search warrant, but only if they can be identified quickly and easily. Unfortunately, doctor-patient confidentiality doesn't provide the same protection for medical records, so you can't stop the agents from seizing them.

In case the agents show up before or after normal office hours, your plan of action should identify the key personnel to be contacted immediately, such as your partners, the office manager, and your attorney. The plan should note their responsibilities in case of a raid, including who is authorized to deal with the agents.

The office manager (assuming she's in charge) should ask the agents for identification and record their names, positions, and organizations. She should immediately ask for a copy of the warrant, and if possible, the supporting affidavit as well. She should review those documents carefully, particularly the description of the areas to be searched, and the documents or property to be seized.

The office manager should ask for time to consult with your attorney before the search begins. Although that's not technically a legal right, usually the agents will agree to wait an hour or so. If possible, the attorney should be put in touch with the lead investigator immediately and come to the office to monitor the search.

If the attorney can't be present, the office manager should monitor the search closely, to keep it within the limits authorized by the warrant. Without interfering, she should take detailed notes on the areas searched and the files seized and demand a written inventory of those materials from the lead investigator. That information will create a useful record of the search and may help reveal the focus of the investigation.

While the office manager shouldn't try to interfere with the agents, she should make clear that her compliance doesn't constitute an implied consent to the search. Consenting could validate an otherwise improper search and seizure, and limit legal objections.

Unless authorized, the person served with the warrant should not discuss anything substantive with the investigators without advice of counsel. Because the warrant suggests that your practice may be involved in criminal activity, only your attorney should conduct such discussions.

If the agents use the raid as an opportunity to question the staff about the issues and evidence under investigation, your employees are likely to be intimidated and feel obligated to respond to their queries. For that reason—and because they're not likely to get much work done during the search—all nonessential staffers should be assigned to work in other areas or sent home until the search is over. If they're not around, they can't be questioned.

Those who remain, or who may be assisting the agents, should be carefully instructed beforehand about how to conduct themselves during a search. There's a fine line, however, between advising them of their rights and responsibilities in such situations, and committing what could be perceived as obstruction of justice. For example, while your employees don't legally have to answer the investigators' questions, you shouldn't tell them to refuse to. If the investigators approach them—at the office or at home—they have the right to demand that such interviews take place at the office during normal business hours. They also have the right to consult with your attorney, and possibly to have him present during the interview.

What your lawyer can do to protect you

If he's contacted immediately, your attorney may be able to delay the search by requesting an emergency hearing on the warrant, at which he could argue for a stay of execution. If it's too late for that, he may be able to limit the scope of the search and the documents to be seized.

While medical records don't have the same "privileged" protection as lawyer-client communications, your attorney can still object to their seizure on the grounds of medical confidentiality and HIPAA requirements. That objection may not prevent the agents from seizing anything, but it could slow them down or limit what they take. Even if it doesn't, it could help form the basis for a later motion to suppress seized evidence if the raid leads to prosecution.

With patient records, your attorney can try to negotiate an agreement to have the agents take copies instead of originals, or at least to let the staff make copies first. Similarly, he could ask the agents to allow the staff to download copies of computerized files from the hard drive or copy them onto diskettes. If that's not possible, he might be able to arrange for your staff to have access to the seized records.

Any of these options could help the practice continue normal operations. If they don't work, your attorney can still request a temporary injunction—under Federal Rules of Criminal Procedure—seeking the return of the records on the grounds that you have been the victim of "an unlawful search and seizure" or the "deprivation of property."

No one can completely block a federal search and seizure raid. But with proper preparation, and with advice from your attorney, you may be able to limit the resulting disruption, and keep your practice running.

 

The authors are attorneys with Vinson & Elkins, specializing in health care law. Lawler is in the firm's Washington, DC, office. Eiland is based in the home office in Houston, TX. This article is adapted from a version that originally appeared in the firm's newsletter, Health Care Legal Update.

 

William Lawler III, Gary Eiland. Your rights if the Feds come knocking. Medical Economics Sep. 19, 2003;80:59.