Your rights in an investigation
By Deborah Green, Esq.

Investigators from the Office of the Inspector General recently came to my friend’s office and carted off a number of his files, even though they had no search warrant. He’s having a tough time running his practice now because he doesn’t have certain records that he needs. What are my rights if investigators come to my office?

When investigators have no search warrant, they are supposed to call you in advance to set up an interview, then send a letter confirming the time and your right to have an attorney present.

In the real world, agents often ignore these guidelines and show up unannounced, hoping that you do not know your rights.

PLAN AHEAD

No one wants to deal with this type of situation. However, if it happens, it is best to be prepared.

• Get an attorney. Make certain that you have the name and telephone number of a criminal attorney in the event that investigators come to your door.

If you don’t know the name of a criminal lawyer in your area, call your local bar association to get the names of several in your area. Find an attorney who is relatively close to your location so that he or she can get to your office quickly. (Ask your attorney for a fallback telephone number if he or she is unavailable when you call and the investigators have entered your office).

• Identify a backup person. This is someone who could talk to investigators in your absence.

• Train the backup person. Make certain your designated spokesperson knows that he/she is not required to volunteer information to the investigators or even answer their questions.

NO WARRANT?

If the investigators do not have a search warrant, do the following:

• Ask for proper identification. Make sure the investigators are from the government, not from a private payer.

• Request a written statement. If they do not have a search warrant, request a written statement specifying the exact issues that brought them to your practice and the documents they want. Send them away politely, with a promise that you will get the documents they have requested within 24 hours. Then call your attorney immediately.

Although investigators have the right to give your office a cursory review, they are not entitled to rifle through your records without your permission. Even search warrants are limited in scope.

• Do not talk to them. You have a constitutional right to “lawyer up” and you should take advantage of that right, even if you have nothing to hide. The investigators who come to your office are not on your side and anything that you say may be misinterpreted.

IF THEY HAVE A WARRANT

If the investigators do have a search warrant, call your attorney immediately.

• Send all nonessential employees home. You do not want them available to answer questions.

Even though you may not prevent your employees from talking to the investigators, you should give your nonessential employees the rest of the day off. Occasionally an employee, with the best of intentions, might say something to an investigator that should not be said without counsel present.

A warrant cannot be issued unless someone swore to an affidavit that would indicate probable cause that something illegal was happening in your office.

If the affidavit is sealed, the investigator will not be able to give you a copy, but he or she may tell you what sparked the investigation and the nature of the suspected crime.

• Object to a search outside of the warrant’s limits. If the investigators start looking outside the warrant’s designated area, speak up. If you fail to object, your silence may be construed as permission to expand the parameters of the search.

• Ask the agent for a copy of the list of seized items. This way you will know what was taken and it will be easier for you to reconstruct your records and continue running your business.

• Ask the agent for permission to make copies of confiscated records. Request that they take computer files rather than the entire computer.

Suggestion: Download your computer files every night and keep the records off-premises so that in the event the agents do take your computers, you will still be able to run your practice.

• Accompany the agents. Have an employee follow the agents around as they search your office. Ask your employees to make notes of their observations and any of the investigators’ statements. Do not, however, interfere with the search.

• Be polite. Courtesy helps expedite the matter.

• Be honest. If all files are not present, do not tell the investigators that they are. You could be charged with obstruction of justices if they found out that you purposely tried to mislead them.

Deborah Green, Esq., is a member of the state bars in New York and Florida. She specializes in healthcare law. She can be contacted by phone at 954-971-7778 or by e-mail at healthattorney@aol.com.

DISCLAIMER This column is provided for educational purposes only. The accuracy or timeliness of the information presented is not warranted. The information presented is not being presented as legal advice with respect to any matter and that no attorney-client relationship is established.