State and federal government agencies have made clear their intention to vigorously enforce the health care fraud and abuse laws through administrative civil and criminal means. These efforts are really only beginning to have their full impact, but already the government's intentions have been supported by a noticeable increase in enforcement (administrative, civil and criminal) action by state and federal authorities, especially in Florida. Accordingly, we believe it is important, once again, to let our clients and friends know what an appropriate response is in the event that a government agent approaches you or an employee of your organization or visits you at home or work.
Government Questions
If an agent of the government contacts you for an interview you should respectfully decline on the advice of counsel. You have no legal obligation to speak voluntarily with a government agent. In fact, you have a Fifth Amendment right to refuse any interview. You should tell the agent that, on the advice of counsel, you respectfully decline to speak with the agent. You should further request that the agent contact your attorney. Under no circumstances should you make any statements with regard to the government's allegations or the facts underlying its investigation.
Your employees also should be advised as to how to handle an inquiry from a state or federal agent. They also are not obligated to speak to such an agent, and have a right to be represented by counsel when speaking to one. You should inform your employees that they are not obligated to speak to an agent and that they are entitled to representation. You should inform them that the organization's attorney can assist them in such an interview, but that the attorney would not be representing them personally. Rather, your attorney would be representing the organization. Your employees should be told that they may retain their own counsel.
Policy Setting
You should not forbid your employees to speak to government agents, as this could be construed as obstruction of justice. Your employees merely should be made aware of their rights in this situation. You also should request that employees inform you if they are visited by agents, but again, you should not require that they do so.
If an agent of the government contact you or your office with a request to obtain documents, the nature of that request will determine the response. If an agent wishes to inspect your records (without a search warrant or subpoena), you should instruct your employees to notify you immediately and you should then refer the agent to your attorney. Generally, federal and state agents are allowed to inspect those records supporting a claim for payment under the Medicare or Medicaid Programs. However, one must provide only reasonable (not immediate) access to information supporting a claim for payment under Medicare or Medicaid.
It also may not always be clear that a particular document "supports" a claim. If you allow immediate access to such records (before consulting with your attorney), attempt to arrange to photocopy the documents the agent inspects or obtains. At a minimum, you should keep an accurate record or list of exactly what documents the agent inspects an/or copies. In the absence of a search warrant the agent would have no right to seize and take original documents (see discussion below).
Warrants and Subpoenas
In the absence of a subpoena or warrant, you have no obligation voluntarily to provide copies of non-corporate, personal records. You may have a Fifth Amendment right not to be compelled to produce personal documents (as opposed to records of your corporation; corporations do not enjoy Fifth Amendment privileges). If the agent demands copies of personal documents, you should respectfully decline and refer the agent to your attorney.
If a grand jury subpoena duces tecum is served, you or your employees should accept service and immediately fax a copy to your attorney. Documents (or copies) should not be given to the agent at the time the subpoena is served. A subpoena for testimony and/or documents always has a future return date with which you should comply, but not without the prior advice and guidance of your attorney. Again, you should make no statements regarding any documents sought by a grand jury subpoena or regarding any allegations or facts related to the grand jury's investigation.
If an agent approaches your or your business with a search warrant, you or your employees should accept the warrant and immediately fax a copy to your attorney. If served on your business when you are not present, your employees should be instructed to contact you immediately. The agent will be entitled to seize only those documents that are specifically described in the search warrant. This may include both corporate and personal records. You should accompany the agent to any location where the agent searches. You should attempt to get copies of any documents that are seized, or at least a commitment from the agent that the agent will return copies of the documents as soon as possible (with or without such a commitment, you should make a detailed list of what is seized).
A search warrant is issued for documents only, and does not require you or your employees either to volunteer information orally or to respond to questions that the agent conducting the search may pose. If the agent attempts to speak with you, you should decline respectfully and refer the agent to your attorney.