No. Not without counsel present, not without a proffer agreement if the interview concerns the subject matter of an investigation, and not without a complete assessment of your legal position before the interview begins.
The question contains an assumption worth examining: that the practitioner has a choice about whether to allow the interview. They do. A voluntary interview at the office is voluntary. DEA agents and FBI investigators who appear at a medical practice seeking an interview of the practitioner have no authority to compel that interview absent a subpoena or an arrest. The practitioner who speaks with them is speaking voluntarily, and the consequences of that voluntary speech are governed by the same principles that govern any voluntary communication with federal investigators.
The Office as an Investigative Environment
When DEA agents or FBI investigators conduct an interview at a medical practice, they are in an environment that contains the records, the systems, and the personnel that are the subject of their investigation. An interview conducted at the practice is an opportunity for the agents to observe the physical layout of the office, to see how patients are being processed, to note the presence of specific equipment or the absence of equipment that a legitimate examination practice would have, and to make observations about the practice’s operations that supplement the evidentiary record they have developed from the prescribing data.
The agents are trained to conduct interviews in a manner that appears conversational and that encourages the practitioner to provide information beyond what was directly asked. The office setting facilitates this: the practitioner is comfortable in their own environment, the agents can point to specific records or patient files to prompt elaboration, and the practitioner’s staff may be visible in the background, creating an awareness that the interview is occurring in a setting where professional norms of helpfulness apply.
The Specific Risk of Medical Practice Interviews
Physicians and other healthcare practitioners who are interviewed in their offices about their prescribing practices face a specific version of the general risk associated with voluntary interviews. The practitioner who explains their prescribing philosophy, describes their patient assessment process, characterizes their prescribing as within the standard of care, or provides specific clinical justifications for specific prescriptions is providing the government with a narrative account of the conduct under investigation. That account will be compared against the prescribing records, the patient medical records, and the accounts of patients and former employees who have already been interviewed.
Inconsistencies between the practitioner’s account and the other evidence the government has assembled are not resolved in the practitioner’s favor. They become additional evidence. A practitioner who describes their examination protocol in terms that the patient records do not support, who characterizes their prescribing as responding to documented clinical need when the records reflect inadequate documentation, or who provides explanations for specific prescriptions inconsistent with what the records show has provided statements that the government can use to support a theory of intentional unjustified prescribing.
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(212) 300-5196What Counsel Provides in This Context
Counsel retained before any voluntary interview provides several protections unavailable in an unrepresented interview. Counsel can communicate with the agents before the interview to determine its subject matter, the practitioner’s status in the investigation, and whether the agents are prepared to provide any formal protection for the practitioner’s statements. Counsel can assess whether the interview serves the practitioner’s interests given the investigation’s current state. And counsel can be present during any interview that the practitioner decides, after full advice, to participate in.
The presence of counsel at a voluntary interview does not prevent the agents from asking questions, but it provides real-time guidance about which questions to answer and which to decline, and it creates a second witness to what was said. The attorney’s notes are work product protected from the government’s access and provide an independent record against which the agent’s FD-302 can be measured.
The practitioner who permits a voluntary interview at their office, without counsel, in response to agents who arrived unannounced, has made the decision most convenient for the agents and least protective of the practitioner’s interests. The inconvenience of declining the interview that day, retaining counsel, and engaging the matter through proper channels is the inconvenience that serves the practitioner’s legal position.
Todd Spodek
Lead Attorney & Founder
Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.
Federal agents execute a search warrant at your medical practice, seizing patient records and prescription logs.
Can they take patient records without patient consent?
A valid federal search warrant overrides HIPAA privacy protections. However, the warrant must be properly scoped. An attorney can challenge overly broad warrants and move to suppress improperly seized evidence.
This is general information only. Contact us for advice specific to your situation.
If Agents Are Already Present
If DEA agents or other federal investigators have already arrived and are requesting an interview, the practitioner should indicate calmly that they are not in a position to speak without their attorney present, that they will contact their attorney immediately, and that their attorney will arrange any appropriate follow-up. The practitioner should ask for business cards, note the time of arrival and names of personnel present, and contact counsel as soon as the agents leave.
The agents may indicate that refusal to speak will be noted or that speaking now will be better for the practitioner. Those representations may or may not be accurate. None of them is a sufficient basis for conducting a voluntary interview without counsel when a federal investigation is underway.
