WHAT THE HEALTH PROFESSIONAL SHOULD DO WHEN A GOVERNMENT SUBPOENA ARRIVES

Wednesday, August 5, 2015
By Vivionne N. Barker, J.D. and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law



A subpoena is an order of a court (or a government agency) that requires an individual to testify or to produce documents on or before a certain date.  There are many different types of subpoenas (state, federal, grand jury, administrative, etc.).  If you, your medical group, or your facility is served with a subpoena, the following advice could be helpful:

•    First, be sure to respond within the time provided in the subpoena. If it is impossible to do so, you or your attorney should request an extension of time in writing. You must not just let the time go by without communicating with the person and agency issuing the subpoena.
 
•    Do not attempt to respond to a subpoena without the assistance of an attorney.  The subpoena may call for documents to which the government is not entitled, such as attorney-client privileged documents and certain quality-assurance documents.  It is in the company's best interest that all communications with the government concerning a subpoena are through an attorney experienced in subpoena compliance.  In certain circumstances, even the act of producing documents may result in unwanted consequences.

•    Unfortunately, subpoenas issued in health care-related investigations are often extremely broad.  In many situations, government attorneys are willing to negotiate and narrow the terms of the subpoena or agree to a "rolling production" of documents, where documents are produced over a period of time as they are located, numbered and copied.

•    Some subpoenas appear to require the recipient of the subpoena to create documents in response to the subpoena.  The government generally cannot require you to create documents that don't already exist to give to them. However, this may be something you are willing to do as part of negotiating with government counsel on other requirements of the subpoena.

•    In certain circumstances, especially where you maintain information in an electronic form, the government may require you to produce it in a certain format.

•    Receipt of a subpoena is obviously a sign that an investigation is underway.  It is possible that the subject of the investigation is not you or your oganization, but Company X, and the government is only seeking documents from your company to learn something about your company's relationship with Company X.  Nonetheless, you should be aware that, depending upon what the documents turned over to the government reveal, the government may decide to turn its focus on your company.

•    Agents will, in most cases, personally serve the subpoena on a custodian of records at the company and, while doing so, often attempt to interview one or more of the employees on site.  All employees should be made aware that they are under no obligation to be interviewed and have the right to have an attorney present if they do decide to be interviewed.

•    Even if no attempts are made to interview employees when the subpoena is served, it is quite possible that the government will attempt to contact employees at home to interview them without the company's knowledge.  Employees should be advised that government agents may attempt to contact them at home and should be advised of their rights and responsibilities in the event this happens.  Some organizations will hire attorneys to consult with and represent their employees.

•    In responding to a subpoena, be sure to identify for the attorneys working with the company all documents that are particularly important (whether the documents help or hurt) to ensure that all attorneys are aware of the existence of these particularly important documents.  All documents should be reviewed by legal counsel before they are produced to the government.  Some documents may not quality for disclosure or production for various legal reasons; this is a determination an attorney will need to make.

•    Immediately upon receipt of a subpoena, all employees should be instructed not to destroy, alter in any way, or throw away any documents.  While some companies have document retention/destruction policies in place as a normal practice, these policies may allow for the destruction of certain documents that the government is seeking through the subpoena.  Therefore, standard document retention/destruction policies should be immediately suspended once a subpoena is served on the company.

•    In health care cases, the government has made increasing use of Authorized Investigative Demands (AIDs) that require the production of documents only.  The only witness testimony that can be compelled under an AID is the testimony of the custodian of the records about the records' authenticity, source, location, etc., not, e.g., what the document means or why it was prepared.

•    Finally, even if you think you or your company has done nothing improper, receipt of a subpoena is a serious legal development that should be taken seriously and should be addressed by competent and experienced counsel.  Even if you are not the target of the investigation now, you may become one later.


At The Health Law Firm, we represent medical professionals who are served with a subpoena.

Visit our Areas of Practice page to get more information.


Samples of Subpoenas Related to Health Care.


To view a sample subpoena from the Florida Department of Health, click here.

To see a sample Health Care subpoena issued the Office of Inspector General (OIG) of the Department of Health and Human Services (DHHS), click here.

For a sample of a subpoena from the Florida Medicaid Fraud Control Unit (MFCU), click here.

For a sample subpoena issued by the U.S. Attorney, click here.

For an example of a subpoena for documents and testimony before a Federal Grand Jury, issued at the request of the OIG, click here.


Comments?


Have you improperly handled a subpoena? What were the consequences? Please leave any thoughtful comments below.


Contact Health Law Attorneys Experienced with Investigations of Health Professionals and Providers.

The attorneys of The Health Law Firm provide legal representation to physicians, nurses, nurse practitioners, CRNAs, dentists, pharmacists, psychologists and other health providers in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Medicare investigations, Medicaid investigations and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.


About the Authors: Vivionne N. Barker is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620.

George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area.


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“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
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8/5/2015

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