The recent heightened scrutiny of healthcare providers by federal and state law enforcement agencies could mean criminal investigative agents may visit your facility or practice.
The agents may come professing a spirit of cooperation, i.e., simply wanting to ask employees a "few" questions in order to clear up a "minor" issue. Or agents may suggest they are only performing a ministerial task, i.e., serving a grand jury subpoena. Or they may insinuate if your employees do not follow their instructions, they will bring your business to a halt while they execute a search warrant.
In these scenarios, the best response is achieved by careful, prior planning – having policies in place that are clearly communicated to employees before the agents arrive. The discussion of various procedures and rights contained in this article is based on federal law. Your state may impose additional requirements.
Search Warrant
Because an immediate, appropriate response is crucial when law enforcement agents appear with a search warrant, facility administration should designate, in advance, an employee or employees such as the CEO or CFO to take charge when a search warrant is served. This designated official immediately should:
- Obtain a copy of the warrant.
- Request a copy of the affidavit supporting the warrant.
- Alert facility legal counsel and promptly provide copies of the warrant and affidavit.
- Determine whether any of the records called for by the warrant are crucial to the continued operation of the facility.
- Provide legal counsel with a detailed list of such documents so arrangements can be made with agents to copy these records before they are removed from the facility.
The designated official should restrict his or her conversations with the agents to the location of records called for by the warrant. He should make no statements concerning whether all responsive records have been provided. The designated official should never allow agents to move unescorted within the facility. He should instruct employees to make no comments to the media and to refer all media contacts immediately to the facility's public information officer.
Because a search warrant is a court order and must be complied with, it is crucial the facility comply cooperatively and courteously. While employees should not interfere with the execution of the warrant, a warrant is not intended to close down the business of the facility.
The designated official and facility legal counsel should address immediately any direction by the lead agent for employees to stay in a particular area of the facility. Such a direction usually indicates a concern that documents or computer records may be destroyed before they can be seized. Consequently, steps must be taken immediately to allay suspicions and to attempt to reach a compromise that ensures the integrity of the items to be seized while allowing some or all of the business functions to continue uninterrupted.
A search warrant does not authorize agents to interview employees. Therefore, no employee should speak to the agents, except the designated official; the designated official should restrict his or her conversation to identifying the location of documents the warrant calls for and other administrative details in connection with compliance with the subpoena.
The refusal to allow employee interviews needs to be handled with some delicacy so it is not interpreted as obstruction of the investigation. Counsel may suggest employees willing to be interviewed will be made available at a later, mutually convenient time when counsel can be present.
Responding to a Subpoena
A grand jury subpoena is like a court order. It requires the testimony of a witness or the production of specified documents or things before the grand jury. Most subpoenas call for witness testimony and/or requested items before the grand jury at a particular time and place. A forthwith subpoena indicates some unusual circumstance exists – imminent harm to a witness or likelihood of destruction of evidence. It requires the immediate production of the thing identified in the subpoena.
In the administrative context, the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services and State Medicaid fraud control units have the right by federal regulation to immediate access to certain records. See e.g., 42 C.F.R. § 1001.1301. The types of records an agent may review under this regulation are broad. In the case of the OIG, an entity must provide access to records and other data "necessary to the performance of the Inspector General's statutory functions." 42 C.F.R. § 1001.1301(a)(1)(iii). Similarly, the state Medicaid fraud control unit may require access to any documents necessary for the "purpose of conducting its activities." 42 C.F.R. § 1001.1301(a)(1)(iv).
Failure to grant immediate access upon reasonable request may result in exclusion from the Medicare or Medicaid program. In this context, "failure to grant immediate access" is defined as the refusal to grant access upon reasonable request or the failure to provide a compelling reason why access may not be granted. 42 C.F.R. § 1001.1301(a)(2). A "reasonable request" is a written request presented during regular business hours by an agent who properly identifies himself. The request must include, among other things:
- A statement of the authority for the request.
- The rights of the entity in respond-ing to the request.
- Penalties for failing to comply, including when the exclusion will take effect.
The exclusion is deemed to be effective as of the date of the refusal. 42 C.F.R. § 1001.1301(c). The length of the exclusion depends on a number of factors, including the circumstances of the refusal and its immediate impact on the healthcare program or its beneficiaries as well as the entity's previous criminal, civil or administrative sanction record. 42 C.F.R. § 1001.1301(b)(2).
Personnel likely to be served with a subpoena, e.g., the receptionist or front-office employees, should be advised a grand jury subpoena does not authorize agents to conduct interviews. The employee receiving it should accept service courteously and immediately deliver the subpoena to the designated official. The designated official should then:
- Immediately inform facility legal counsel by telephone and deliver a copy of it to counsel as soon as possible.
- Promptly advise legal counsel whether responsive documents exist for each request in the subpoena and the location of all such documents. The names, current addresses and telephone numbers of all current and former employees who either are or were involved in the creation and custody of these responsive documents or who are familiar with the subject matter also should be provided.
The facility should not copy any documents until counsel instructs them to do so. Of course, no one should ever destroy or alter any records that are or may be responsive to a subpoena. Because communications with the government need to be uniform and carefully thought out in advance, it is imperative no one contact any representative of the agency serving the subpoena without the express, prior instruction of the facility legal counsel or other outside counsel retained to represent the company.
Agents will sometimes attempt to persuade an employee to make a statement at the time the subpoena is served in lieu of being inconvenienced by having to appear before the grand jury. A grand jury subpoena only requires the person served to provide information directly to the grand jury. The secrecy of testimony before the grand jury is protected by statute. Generally, grand jurors and the prosecutor are precluded from disclosing that any witness appeared before the grand jury, the questions asked and answers given, except when disclosure to a defendant post-indictment is required by law. The law, however, does not either require or preclude the witness from disclosing any aspect of what occurred before the grand jury.
Requests to Interview Employees
Employees should be fully informed of their rights before criminal investigative agents attempt to conduct interviews. Personnel should be alerted that a frequently used interview technique is for agents to arrive at an employee's residence during the dinner hour. In such a situation, the employee always has the right to determine whether to provide information and to set the time, place and duration of an interview. In fact, there is no state or federal law requiring a particular employee to answer a criminal investigative agent's questions. While government reimbursement guidelines may require the provider to cooperate and to provide records, such contractual provisions cannot compel a specific individual to make a statement to a government agent.
Employees have the right to consult with an attorney before deciding whether to answer questions. Employers should develop guidelines for determining under what circumstances employees will be provided counsel, the procedure employees must follow to request counsel and the policy for the selection and payment of counsel.
Employees should be advised that they have the right to have any person or persons present during an interview by a government agent. If an employee decides to answer questions, he can decide which to answer and which to provide no response. Answering some questions on a given topic does not compel an individual to answer all questions on that topic. An employee may assert his or her right against self-incrimination at any time during an interview.
Without explanation, an employee can terminate the interview at any time. There is frequently confusion concerning access to the content of the information provided during such an interview. The employee is free to tell anyone he chooses about the questions asked or the answers given during the interview, notwithstanding an agent's request to keep such information confidential.
An employee can refuse to allow the agent to record the interview and can refuse to sign a written statement embodying some or all of his or her answers. Conversely, the agent is not required to provide the employee or the employer with copies of any memorandum he makes of the interview. However, the employer may properly request that, in the event an employee agrees to be interviewed, he advise management.
Employees frequently are confused about the confidentiality of information they provide to law enforcement agents. Under federal law, the preservation of confidentiality of such information is limited. For example, in the event the facility is later indicted, agents' memoranda of employee interviews will be disclosed prior to trial, if they contain information that exculpates the company in connection with the charges or if the employee will be called as a government witness in the government's case-in-chief. Likewise, if the employee's statement is utilized in an affidavit in support of a search warrant, the confidentiality of the identity of this employee-informant cannot be guaranteed. If the employee is later indicted, a copy of all of his or her statements must be disclosed to his or her counsel prior to trial.