Dark-suited gentlemen stride purposefully into your reception area and ask to see the person in charge. The visitors announce that they are with the federal government — the U.S. Attorney's Office, or the FBI, or the Office of Inspector General — and that they have a warrant to seize documents and other materials. What do you do?
Government scrutiny of possible fraud goes far beyond looking at intentional duplicity by venal health care providers and the HMOs that contract with them. It is imperative for all health care organizations to have in place a written policy for dealing with government investigations. As part of your compliance program, these policies should deal with document requests, on-site inspections, interviews, and search warrants. Each employee in your organization should understand what is expected of him during an investigation.
Line up your resources
Your first step is to obtain essential information. Ask to see identification from the person in charge of executing the search warrant. Take notes — name, location, agency, and title.
Also ask for a copy of the warrant. (The government will probably have an extra copy for you.) Read it carefully. Ask if an affidavit was submitted to a court or some other official body as a prerequisite to obtaining the search warrant. If the answer is "no," find out how the warrant was authorized. If permission from a judge or other entity was necessary, an affidavit will have been submitted in support of the request. Ask for a copy and read it carefully.
Call your attorney. If you are lucky, you may have local health care counsel with specific experience in dealing with federal and state government problems. If not, have local counsel work with an out-of-town specialist to coordinate responsibilities in the event of government scrutiny — before you are part of an investigation, if possible. You must have someone close by who can get to your office. You must have someone who understands health law issues and government investigations.
Tell your attorney the time the warrant was served, which areas the warrant states are to be searched, the sorts of evidence the warrant states are to be seized, and the agencies (law enforcement and regulatory) that are involved. All of this information was obtained by discussion with the person in charge and by your review of the warrant and/or affidavit.
Sometimes the agents are unwilling to wait for your attorney to arrive. Most often, they will begin the search immediately, so it is imperative to know what to do when you have no legal aid on premises.
Use of personnel
Pick one employee to be in charge. That person (it may be you) should be responsible for interacting with the agents and for keeping an eye on everything. Depending on the scope of the search, you may need more than one person to monitor the activity, but one person should be in charge of the overall coordination. Then, have your designated in-charge employee introduce himself or herself to the agents, especially the agent in charge, and request that all questions or comments from the agents be directed to that person.
The in-charge employee, and his or her team should take notes throughout the search. They should record type and location of all evidence seized. It is important to identify seized documents, photographs, computer records, software and/or hardware, video and audio recordings. If your people do not antagonize the agents, the agents will probably be somewhat patient with this note taking and identification process. They will not, however, slow down the process or allow employees to interfere with the search in any way.
Next, speak to your personnel. If, as is often the case, it does not make sense to gather everybody together, speak to your people in clusters. Even better, have a written policy already in place and understood by your people, so that all you need do during the search is remind people.
Tell them not to interfere with the search in any way. Remind your employees that they have the right not to talk with the government. Choose your words carefully, however. It is dangerous to tell your employees not to talk to the agents, or to encourage them to take that stance, as the government may consider such actions to be evidence of obstruction of justice. Make clear to your personnel that such decisions are matters of personal choice.
Right to an attorney
Make sure your people know that, if they do decide to speak, they do not have to do so at that moment. Rather, they have the right to have an attorney and/or a representative of your organization present. In this regard, note that the health care organization is frequently expected (and sometimes required) to pay for independent counsel to represent any employees who wish such counsel during their dealings with the government. While your attorney may accompany interviewed personnel, your employees must understand that the organization's counsel does not represent them individually.
Let your personnel know that the two most important rules in communicating with the agents are to speak truthfully, and to not speculate about past events. If they don't know, they should say so. If they forget, they should indicate that they do not recall. If they have a partial recollection, they may speak as to what they precisely recall, but they must not try to fill in the gaps with guessing.
Keep it formal
Also remind your personnel that there is no such thing as an informal conversation or off-the-record comment with agents in such circumstances. Health lawyers and criminal attorneys are kept quite busy correcting governmental suspicions and misdirected actions caused by careless or broad comments made by health care personnel during "routine" or "informal" discussions.
While you truly may have nothing to hide, it is essential to exercise the same caution and preparation in responding to any government question or request, including "informal" ones, as you would exercise if you were offering testimony during a trial or at an administrative hearing.
Neil Caesar is president of The Health Law Center (Neil B. Caesar Law Associates), a national health law consulting practice in Greenville, S.C.