Responding to Search Warrants & Subpoenas in Healthcare Fraud Cases
Responding to Search Warrants & Subpoenas in Healthcare Fraud Cases
Getting a search warrant or subpoena can be scary for any healthcare provider. Even if you’ve done nothing wrong, it can make you feel like a criminal. But there are things you can do to protect yourself and your practice when the government comes knocking. This article will walk you through what to expect and how to handle it.
What Triggers a Search Warrant or Subpoena?
There’s a few things that can trigger the government to start investigating a healthcare provider:
- A whistleblower complaint from a former employee or patient alleging fraud. This is super common.
- Data mining that flags abnormal billing patterns. This is basically the government’s fancy software looking for potential fraud.
- Patient or provider complaints about potential fraud.
- Law enforcement receiving a tip.
Once the government has some evidence of potential fraud, that’s when they may move forward with a search warrant or subpoena to gather more information.
Understanding the Difference
A search warrant and subpoena may sound similar but they’re very different:Search Warrant: This allows law enforcement to enter your medical office and physically search through your files, computers, etc. to gather evidence. Police can even show up unannounced with a search warrant and you have to let them in.Subpoena: This is a written request for you to turn over specific records and documents related to an investigation. You’re given a reasonable amount of time (like 2-3 weeks) to gather everything.So a search warrant is way more invasive and disruptive than a subpoena. But both should be taken very seriously.
What to Do if You Get a Search Warrant
If the police show up at your office with a search warrant, you need to let them in. You can’t refuse or obstruct their investigation. Here’s what to do:
- Remain calm and cooperative. Be polite to the officers, even if you feel violated or accused. Don’t resist them or try to hide anything.
- Call your lawyer immediately. Your lawyer can come observe the search, assert any privileges, and make sure it’s done properly.
- Don’t answer questions. You have the right to remain silent, so don’t answer any questions without your attorney present.
- Don’t destroy or hide any documents. That can lead to obstruction charges.
- Ask for a copy of the search warrant. This will say what they’re authorized to search for and seize.
- Take detailed notes. Document what the officers searched, any items seized, and how long they were there.
- Ask officers to avoid disrupting your practice. As long as it doesn’t obstruct their work, ask them not to disturb patients or block access to medical care.
- Get contact info for the lead agent. You’ll need this for any follow up communications.
The whole process can take several hours. It’s unpleasant but staying calm and following these steps can help protect your rights.
Responding to a Subpoena
If you get a subpoena, you have a bit more control over the process:
- Don’t ignore it! You must respond within the stated timeframe (usually 2-3 weeks). Ignoring a subpoena can lead to contempt charges.
- Notify your legal counsel. Have them review the subpoena and determine if any grounds exist to contest it.
- Negotiate the scope if it’s overly broad. Your lawyer may be able to negotiate limitations on what records are required.
- Begin gathering responsive documents. This includes paper and electronic records. Don’t destroy or alter any documents.
- Assert privileges where applicable. Certain records may be protected under attorney-client privilege or other privileges.
- Consider your options if records contain sensitive info. You may be able to enter a protective order to limit access and use of sensitive records.
- Produce records in an organized manner. Use numbered boxes, folders, USB drives, etc. Include a cover letter confirming what’s been produced.
- Keep a copy of everything you produce. You need this to refer back to during the investigation.
- Follow up if you have any questions. Your attorney can discuss the process with the lead investigator.
It takes time to properly respond to a subpoena, but following the right steps can help reduce headaches down the road.
Understanding Your Rights
As scary as it feels, getting a warrant or subpoena doesn’t mean you’re guilty. Everyone has rights during the process:You have the right to:
- Remain silent and not answer questions from investigators
- Speak to an attorney before answering any questions
- Not consent to any search without a warrant
- Avoid self-incrimination
- Assert privileges over certain records
- Negotiate the scope of warrants and subpoenas
- Challenge unlawful searches or seizures
- Defend yourself in court if charges are filed
Knowing your rights is power. Don’t waive them unintentionally.
How Lawyers Can Help
Having an experienced attorney is crucial anytime you face a fraud investigation. Here’s how they can help:
- Advise you on responding to warrants and subpoenas
- Observe searches and take notes
- Negotiate limitations on scope
- Assert privileges over records
- Prevent self-incrimination
- Raise defenses like improper procedures
- Negotiate settlements or plea deals
- Defend you in court if charges are filed
Don’t go it alone. The right lawyer can guide you through the process and defend your rights.
Potential Outcomes of Investigations
There’s a few ways these investigations can end:
- No action taken. After reviewing records, there may be no basis to proceed.
- Settlement agreement. This involves paying fines/penalties without admitting liability.
- Civil prosecution. The government sues for penalties under the False Claims Act.
- Criminal charges. For major fraud, charges may be filed leading to prison time.
- Administrative sanctions. This can include exclusion from Medicare/Medicaid.
Most cases get resolved through settlements or civil action. But criminal prosecution is possible for major repeat offenders. Having an attorney increases your chance of a favorable outcome.
Best Practices to Avoid Investigations
The best defense is a good offense. Here are some proactive steps healthcare providers can take to avoid investigations in the first place:
- Conduct internal audits to catch any issues early.
- Implement a compliance program to prevent and detect fraud.
- Train all staff regularly on proper billing and documentation.
- Perform due diligence on business partners like marketers or billing companies.
- Keep organized records for easy production if audited or subpoenaed.
- Get legal advice on arrangements that may implicate fraud laws.
- Make compliance a top-down priority in your organizational culture.
No system is perfect, but proactive compliance can help avoid or mitigate many investigations.
Dealing with search warrants and subpoenas is scary. But understanding the process, knowing your rights, and partnering with an experienced attorney can help you get through it. Don’t ignore these things if they show up – take action to protect yourself and your practice. With the right plan, even baseless allegations can be defeated.Here are some useful resources on healthcare fraud investigations: