Your rights during an investigation
By Deborah Green, Esq.

The Office of the Inspector General seized a number of files in my friend's office. What are my rights if this happens to me?

The first thing to do is prepare yourself. Do this by:

• Designating someone in your office to take charge if you are absent;

• Informing your designated employee that it is not required to volunteer information or even answer the investigator's questions;

• Having your criminal attorney's name and telephone number available, as well as a cell phone number, for such emergencies. Since this is a serious criminal matter, your lawyer should be familiar with healthcare matters and close to your location; and

• Downloading computer files each night and keeping the records off-premises so if investigators should take your computer(s), you can still run your practice.

If and when inspectors show up at your door, ask for proper identification and remember only the government may issue search warrants, not insurance companies.

If investigators do not have a search warrant, request a written statement specifying the issues and exactly which documents they want. Then send them away politely, with a promise you will get the requested documents within 24 hours.

Although investigators have the right to complete a cursory review, they may not search your records without permission — search warrants are limited in scope.

If investigators have a search warrant:

• Do not talk to investigators. However, you may not prevent your employees from doing so. Your constitutional right entitles you to have your lawyer present; take advantage of that right because anything you say can be held against you.

• Send all nonessential employees home and cancel all patient appointments.

• Ask for a copy of the affidavit supporting the search warrant. Unless someone swears in an affidavit that there was probable cause something illegal was happening in your office, no one can issue a warrant. If the affidavit is sealed, the investigator will not be able to give you a copy, but he may tell you what sparked the investigation and the nature of the suspected crime.

• Object if investigators start looking outside the warrant's designated area. Investigators may take your silence, or failure to object, as permission to expand the search parameters.

• Ask for a copy of the seized items so you know what was taken and to make reconstruction of your records easier so you can continue running your practice.

• Ask permission to make copies of the records investigators are taking and, if need be, request they take computer files rather than the entire computer.

• Have employees follow investigators around and make notes of observations and any of the investigators' statements, but do not interfere with the search.

• Be polite.

• Be honest. If you do not have all the files, do not tell investigators you do. You could face an obstruction of justice charge if they find you purposely tried to mislead them.

• Do not lie or destroy any documents.

Deborah Green, Esq., practices law in New York and Florida. If you have any questions concerning legal healthcare issues, e-mail her at healthattorney@aol.com or call 954-923-0923.

DISCLAIMER: This column is provided for educational purposes only. The information presented is not as legal advice with respect to any matter and no attorney-client relationship is hereby established.