Hearing these words is every health care provider’s worst nightmare. But, with the increasing use of state and federal police powers to investigate allegations of fraud, abuse and neglect at long term care facilities, the odds of hearing them at some point are growing.
Most providers have no idea what to do if a state or federal official shows up at their facility with an official search warrant and asks for documents. Obviously, the first step is to contact your attorney for advice. But what if you can’t reach your attorney?
We’ve developed a few guidelines to help providers who find themselves in that position and need to know what to do while they are contacting or waiting to hear back from counsel. These apply to any situation in which state or federal officials show up at your facility, armed with search warrants issued by an administrative agency (such as the State Attorney General, the FBI, the Office of Inspector General, etc.) or a state or federal court.
- Do not interfere with the search.
- Get the name of the lead agent, the agency for which he or she works, and his or her address and telephone number.
- Request a copy of the search warrant. Note the areas the agents can search and the items they can seize. If the agents begin to search places or seize items not identified in the search warrant, bring it to the lead agent’s attention. Fax a copy of the warrant to your attorney.
- Identify attorney-client and other privileged information. The agents are permitted to seize this information but should keep it segregated.
- Request permission to have a few employees accompany agents to monitor the search. Tell these employees not to make any substantive statements to the agents. Have employees take notes on the following: (a) the areas searched; (b) the documents or items seized; (c) the questions asked by agents; and (d) the names of employees interviewed by agents.
- The agents may detain all persons on the premises while the warrant is being executed. Ask permission to send non-essential employees home. If permission is granted, advise employees to take home only personal possessions and not to take any company documents or files with them, including electronic files. Advise employees who do leave that they will be contacted regarding when to return to work or that they should contact a designated individual at a certain time and date to find out when to return to work.
- Develop an employee announcement to advise employees that the premises are being searched pursuant to a search warrant, the company is cooperating with officials executing the warrant, and employees are not to interfere with the search.
- Explain rights to employees. (a) Employees have the right not to be interviewed by the government. It is the individual’s choice whether or not he or she agrees to be interviewed. If employees agree to be interviewed, they can have counsel to represent them at the interviews. (b) Advise employees that they may be contacted at home by government agents and that the same rights to be interviewed or to decline apply there as well. Also advise employees that even if they choose not to be interviewed, they could still be subpoenaed to testify before a grand jury. (c) The company should not instruct employees to decline to be interviewed. That choice belongs fully to each employee. (d) The company should determine whether it is willing to pay for representation of its employees. If so, it should inform employees. (e) Have employees inform the company if they have been contacted by a government agent, been interviewed, or received a grand jury subpoena. (f) Provide a name and telephone number of a company representative employees can contact if they have questions.
- Get a “receipt” for items seized from the officials conducting the search.