Tuesday, February 24, 2009

Investigations, Search Warrants Or Subpoenas -- Attorney Commentary On What To Do When Government Comes To Your Door

Licensed professionals are in a regulated business. Whether you are an attorney, physician, real estate agent, mortgage broker or nurse -- your license is considered a privilege and government investigators do not always call to make a scheduled appointment. Your office may find itself visited by an investigator from a State Board, state or federal investigator or other regulatory personnel. In certain programs such a Medi-Cal or Medicare, if you do not respond immediately you may be threatened with loss of your provider numbers.

If you have a license, failure to "be cooperative" may harm you but how can you "cooperate" and protect yourself and your license at the same time? You may even find yourself visited by government regulators or investigators who ask for records without a warrant, subpoena or release from clients. You know that they did not show up without a reason. This can be a pressure filled situation for professionals and their staff. How any visit is handled is critical and it is important for the professional business to have a plan on how to handle these visits.

Here are general guidelines -- with the understanding that every case is different based on the facts and circumstances:

1. Do not talk to the investigators without an attorney present except to obtain their business cards so you can later schedule an appointment with them and your attorney. If you feel awkward stating that you want an attorney present, simply say you want your accountant or a third party present. Do not worry about "looking guilty" if you want an attorney or other representative present. Most sophisticated business people or professionals would never meet with a government investigator without an attorney.

2. Remember that anything you say is evidence that can be used against you later -- whether in an audit, a disciplinary proceeding or even a criminal investigation. Usually investigators travel in pairs and if you say something to them without a third party present, the investigators may not record it accurately in their report and you face a risk of being misquoted. Thus, you might later have to defend something that you claim you never said!

3. Before being interviewed, your attorney will want to find out the full purpose and scope of the investigation so both you and your attorney can be fully prepared before being interviewed. If you are caught off guard asking questions about a client or patient you have not seen for two years, you might misremember and will probably not be prepared. You may be asked questions about events that occurred several years prior and if you do not recall correctly, your statements might later be characterized as lies or misrepresentations. Full and complete preparation, including review of all files, is key before any interview. You want to be fully prepared as if you were going to be testifying at a hearing because you may need to live with your statements for the next several years in the event there is an administrative, discipline or criminal case.

4. If you "help" the investigators by speaking to them when they show up at your door without an appointment, this does NOT mean that will not later pursue action against you. These investigators cannot promise immunity. Remember that the reason they came unannounced was to catch you "off guard" and get you without an attorney or other representation.

5. Remember that often the investigators have been working on the case for months or longer by the time they come to your office, have interviewed other people and you need to know whether you are a witness, the target of an investigation or in some other category before you are interviewed.

6. All this said, failure to respond is not an option. Failure to respond could result in the withholding of payments, loss of license or some other discipline depending on the board or agency, and the service of a subpoena for the same (and probably more) records. You can seek extensions for producing records and ask that interviews be scheduled later to give you time to prepare and hire an attorney. Time is your friend. It helps you and your attorney obtain information, evaluate the situation, make a thorough and informed response.

7. To evaluate what to do, you need to know what agency the investigator is from. For example, under state and federal law, the Office of Inspector General and Medi-Cal Fraud investigators are entitled to an unannounced visit to a provider’s office under certain circumstances. The particular agency's regulatory rules need to be reviewed to determine your rights. With OIG and Medi-Cal, there are situations where if you fail to allow them into the office or demand that they leave, it could result in program exclusion or payment withholding. However, this does not mean that records have to be produced immediately. It can often be within 24 hours and this does not mean conducting interviews. In addition, the request for records must be in writing.

8. If you are faced with an unannounced visit, the safest bet is to not answer any substantive questions but to explain that this is a bad time, that there are patients/clients in the office and to schedule a return visit within the next day when your attorney can be present. It is usually a good idea to immediately telephone the attorney and have him or her speak with the investigators and make the subsequent appointment and time for producing records.

The attorney can establish basic rules for the return visit. In medical offices, for example, the attorney can state that there are HIPAA and patient care issues and request that the meeting be during a lunch hour or evening hour when patients are not present. The attorney can also request a list of the records requested. This list will help serve as a road map with respect to the purpose of the investigation. If the investigators decline to produce a list of records requested, this is also telling information. Dealing in this manner is generally difficult for professionals and is usually better left to the experienced attorney.

9. If the investigators serve a subpoena, there will be time for the production of records. The subpoena should be immediately faxed to the attorney. It is important with a subpoena that the professional not speak to the investigators serving it about any substantive issues unless there has been approval of such communication by an experienced attorney. Nor should the professional call the attorney or agent on the subpoena to find out what the case is about. This is going to lead into an interview which is not prudent for the reasons set forth above. Subpoenas are often the sign of an ongoing investigation. The most logical response is to immediately involve an attorney.

10. If a search warrant is served, the professional should immediately call an attorney. Again, you should never agree to any interviews without your attorney present. Your attorney can advise you on whether to send employees home and how to handle any requests to interview employees as this is a sensitive and complicated issue. Search warrants are serious since they are one of the more aggressive steps the government can take in an investigation. In a search warrant, a professional can either be a suspect or a non-suspect third party. Whether you are a suspect or not will affect the decisions your attorney will make on how to proceed.

Search warrants by their nature are taken seriously since they must be approved by a judge, are based on a sworn affidavit by law enforcement personnel explaining why they believe there is probable cause that a crime has been committed and that evidence of that crime will be found at the professional's office. In health care fraud cases, for example, a search warrant usually means that there is an informant or current or former employee with detailed knowledge of the professional's business.

11. Do not interfere with any search. Be careful though until your attorney arrives and pay attention to what is occurring if possible. And, again, do NOT speak to the investigators without an attorney present (I cannot repeat this enough). The warrant does not allow interviews but it does not prevent them either. It is all too common that most of the adverse evidence that we seen in cases was accumulated during the execution of search warrants or during surprise or unannounced interviews. For some unexplained reason, the professional thought they could help themselves by agreeing to an interview without an attorney being present.

Remember that search warrants do not require you to answer any questions, and no information should be volunteered. Also, search warrants do not authorize government agents to arrest or hold anyone, and you are therefore free to leave. Once the search is finished, the agents are required to leave an inventory of every item seized. This needs to be sent to your attorney since you may want to seal records or take other action based on privilege.

12. Conclusion. Not every government visit, audit, investigation or search warrant results in a penalty, sanction, administrative or criminal case. But the key is not to mishandle these visits. Since there is a lot of nervousness, emotion and confusion during these visits -- it is far too easy for the professional to make a rushed decision without consulting counsel. Put aside any professional ego or the reassuring thoughts that "nothing can happen to me" and "I didn't do anything wrong" and handle these visits intelligently, strategically, and with complete professionalism. It may be that the visit is simply a visit but be careful and let your attorney make that determination from an objective viewpoint.

Any questions or comments should be directed to: tgreen@greenassoc.com.  Tracy Green is a principal at Green and Associates in Los Angeles, California. They focus their practice on the representation of individuals, businesses, licensed professionals in criminal investigations and proceedings.  


DISCLAIMER: Green & Associates' articles and blog postings are prepared as a service to the public and are not intended to grant rights or impose obligations. Nothing in this website should be construed as legal advice. Green & Associates' articles and blog postings may contain references or links to statutes, regulations, or other policy materials. The information provided is only intended to be a general summary. It is not intended to take the place of either the written law or regulations. We encourage readers to review the specific statutes, regulations, and other interpretive materials for a full and accurate statement of their contents and contact their attorney for legal advice. The primary purpose of this website is not the commercial advertisement or promotion of a commercial product or service and this website is not an advertisement or solicitation. Anyone viewing this web site in a state where the web site fails to comply with all laws and ethical rules of that state, should disregard this web site.

The information provided on this website is for informational purposes only. It is not intended to create, and does not create, a lawyer-client relationship with Green & Associates, Attorneys at Law. Sending an e-mail to Tracy Green does not contractually obligate them to represent you as your lawyer, or create any type of client relationship. No attorney-client relationship will be formed absent a written engagement or retainer letter agreement signed by both Green & Associates and client and which specifies the scope of the engagement.

Please note that e-mail transmission is not secure unless it is encrypted. E-mail messages sent to Ms. Green should not include confidential or sensitive information.