SEARCH WARRANT PRIMER FOR HEALTHCARE BUSINESS
When government agents raid a healthcare business it can be an overwhelming experience for those who own and work for the business. Given the numerous and often complex state and federal healthcare rules and regulations, sometimes even the most careful of medical providers can be the subject of a search warrant. It’s an unsettling thought, but when obtaining search warrants federal agents and prosecutors can misinterpret laws, interpret laws over broadly, or act upon information that is false or misleading.
As a former federal prosecutor for the Justice Department’s Health Care Fraud Strike Force, Jason Knutson knows that a search warrant is one of the primary tools the government uses to gather evidence against a target of an investigation. A well-executed raid by a team of agents will not only obtain documents contained at the site, such as patient and business files, but also electronic files from computers and security cameras, and sometimes even the cell phones of those working at the business. Additionally, during the search agents will also seek to interview everyone at the business to obtain evidence against the business. Given this possibility, it is important for those who own and operate healthcare businesses to educate themselves on search warrants and what to do should they become the target of one.
What is a search warrant?
A search warrant is a court order signed by a Judge that authorizes the search of a particular place without the owner’s consent. To obtain a search warrant the government, which in the case of healthcare providers is often the FBI, DEA, HHS-OIG, or MFCU, must show the Court they have sufficient information demonstrating probable cause that a particular place contains evidence of the violation of a criminal statute. The warrant must state the place and items to be searched with particularity. Although the government submits this evidence through a sworn affidavit by a law enforcement officer, that affidavit is almost always under seal, and the target of the search warrant will not have the opportunity to review it until usually after they have been indicted for a crime or the court otherwise unseals it. They are entitled, however, to see the actual warrant which lists the place to be searched and the items that can be seized.
What evidence could the government already have before the execution of a search warrant?
Unlike what you see in movies, where the detective will obtain a search warrant for a home or business in a matter of hours or minutes, most federal search warrants of healthcare businesses are usually the result of many months of investigation by law enforcement. The government’s pre-search warrant investigation could mean they have already taken the following investigative steps:
- Mined and analyzed available government data such as the company’s Medicare, Medicaid, Tricare billing data, and/or reviewed the file of any audits or administrative investigations by other agencies including the medical board.
- Received information via grand jury subpoenas (without the knowledge of the provider) of the healthcare provider’s financial information.
- Interviewed current or former employees, or current or former patients.
- Conducted undercover operations. For instance, sending an agent or a confidential informant into the business to pose as a patient.
- In certain cases involving medical providers, the government may have also accessed the company’s medical records via subpoena or search warrant of the company’s electronic health records provider.
- In less common cases, they may have accessed emails by executing email search warrants on the company’s email service provider such as Gmail—without the knowledge of the medical provider.
- In rare cases, the government may have obtained a wiretap authorizing the interception of telephone calls and text messages. These are rare because it is a very high bar to obtain a wiretap, and the government has to show that other investigative techniques have not worked, or will not work, before they can intercept telephone conversations.
In some investigations, however, the government will execute search warrants towards the beginning of their investigation. This approach is less common, as many investigators and prosecutors prefer to keep their investigations covert as long as possible. Finally, the best case scenario for the subject of a search warrant, is where the government is executing the search warrant in order to obtain evidence against a third party, not the business that is subject of the search warrant.
What should I do if a search warrant is executed on my healthcare business?
If you don’t already have an attorney that practices white-collar criminal defense, your first step should be to contact the business’s healthcare attorney or in-house counsel. Keep in mind, however, that these attorneys do not generally practice criminal law, and they will need to consult with a white-collar criminal defense lawyer to advise you on the warrant, and to be present during the execution of the warrant. Certainly, you don’t want to be caught in the fast-moving situation of being raided by the FBI, DEA, or HHS-OIG and having to track down and hire a criminal lawyer. Preferably, the law firm you use for your healthcare transactions will have a white-collar criminal defense lawyer on staff. Otherwise, a medical provider should consider having a white-collar attorney on retainer. With that in mind, below are some suggestions on how you should handle a search warrant. These suggestions are not exhaustive, however, and the course of action should be tailored considering factors such as the type and size of the healthcare business.
- Remember your basic rights such as your right to remain silent. You never have to speak to law enforcement outside of identifying who you are. Agents are there to gather evidence and they will be writing down, or recording, everything you say. With that said, basic questions such as where the files are located are generally okay to answer. Ideally your attorney will be at the premises to answer all questions for you.
- Be courteous. Don’t give law enforcement anymore motivation to investigate your business. Unfortunately, some agents will have more motivation to convict someone who was rude or pompous to them during the investigation.
- Read the search warrant and the attachments to the warrant. Although agents usually will not provide you with the search warrant affidavit which details the alleged evidence authorizing the search warrant as they are generally sealed by the court, the government must allow you to see the actual warrant. Make sure the warrant correctly lists the place to be searched, and if that place is not your business, have your attorney inform the agents that they are searching the wrong place. Surprisingly, law enforcement makes this mistake more than one would expect.
- Be aware that the search warrant may include a warrant to search cell phones. The government may have articulated to a court that they have probable cause to obtain particular cell phones used by the business or individual targets working at the business. To confirm they are searching the correct cell phone, agents may ask you to confirm certain details about your phone such as the number, or whether you use the phone to conduct business. Again, you do not have to answer any questions, and the answers to such questions could be used as a basis to seize your cell phone.
- Send the employees home. As a practical matter, no one at the business will be able to get any work done as the agents search the business. Additionally, be aware that law enforcement will undoubtedly attempt to interview your employees. It is important to have a plan in place to determine if your employees will be represented by the business’s attorney, their own attorney, or go unrepresented. If the employee does not wish to be represented by the business’s attorney, make sure that you or your staff do not say anything that may be perceived as obstructing justice. For example, a physician orders his receptionist not to say anything to the FBI when the receptionist is not represented by an attorney and wishes to speak with the FBI. This could be interpreted as the physician attempting to obstruct justice.
- Document which agencies are at the site. This is important information to provide to your attorney as the agencies conducting the search will provide clues as to what they are looking for. Generally you will know who the lead agency is as they will have identified themselves upon entering the premises. But often there are several agencies involved and the presence of those agencies could be significant. For example, if the Texas Medicaid Fraud Control Unit is involved, they are probably investigating some sort of Medicaid fraud allegation. If the DEA is involved, they are likely investigating alleged illegal prescribing of controlled substances.
- Document what law enforcement says and does. Although government agents do not have to reveal the nature of their investigation, they often will inadvertently provide context as to why they are searching the business while they are at the business. Give your attorney a head start by documenting what they say.
- Obtain a copy of the inventory of the search, but also keep your own inventory of what was taken. Law enforcement is required to leave at the business a copy of the inventory of items they have taken from the premises. They also have to file this inventory with the court. As the government’s inventory can lack detail, ideally you will want someone at the company, or from the company’s law firm, taking their own inventory.
- Articulate that certain items are necessary to keep the business running, and correspondingly care for patients, and should remain at the business. For example, the government will often take all of the computers at the office and make a copy of the data on the computers at a government location. Your attorney can possibly negotiate with the government to copy the data on the computers while on site, because those computers are essential to providing patient care.
The above is certainly not an exhaustive list of suggestions for handling a search warrant. The actions a business should take will vary based upon the type of practice, the size of the practice, and various other factors. Prudent healthcare providers will have a plan in place protected under the attorney-client privilege. Although. you may create an internal plan for dealing with a search warrant, realize that any documentation of that plan could be taken as evidence. To ensure that such a plan is not used as evidence against the business, the plan should come from your attorney at your request so it can be protected under the attorney-client privilege and attorney-client communications.
Jason Knutson is a former Federal Prosecutor for the United States Department of Justice’s Criminal Division, Fraud Section with over 20 years of experience as a lawyer. He advises and defends clients in criminal and civil investigations relating to healthcare and other white-collar matters.
Knutson is a seasoned trial lawyer and has been the first-chair attorney in over 50 jury trials in both Federal and State Courts. Additionally he has been lead counsel on numerous white-collar matters, including those related to charges of Conspiracy, Healthcare Fraud, the Anti-Kickback Statute, Money Laundering, HIPAA violations, Bank Fraud, Tax Fraud, Wire Fraud, Tampering with a Governmental Record, Falsification of Records, and several other Federal and State Offenses.
