Wednesday, March 23, 2016
By George F. Indest III, J.D., M.P.A., LL.M., President The Health Law Firm

First, know the difference between a search warrant and a subpoena (or a civil investigative demand, which is similar to a subpoena).

For a subpoena, you must be given a reasonable period of time to respond.  Take the time, call your attorney and have your attorney respond or assist you in responding.  "Right now" is not a reasonable response time for a subpoena.

For a search warrant, this is issued by a court and you are required by law to immediately comply.

If neither of the above:  If they do not have either of the above, you will have to consult with your attorney prior to releasing any documents.  Get the name and contact information form the officer so that your attorney can call him/her later.

These are recommended steps when confronted by officers with a search warrant (note:  you should have your office manager do some of these before he/she leaves the premises):

1.    Ahead of time:  You must ensure that you have a good back-up system for all documents, medical records, billing records, and computer systems, and that they are stored off-site.  Your back-up system must be able to recreate everything you need to run your office.  You should have this anyway as a routine part of your disaster recovery and record security procedures.

2.    Ahead of time:  You and your practice manager should have your attorneys' telephone numbers (including cell phone and after hours numbers) on speed dial on your cell phones.  Be prepared.

3.    Immediately call your health care attorney or criminal defense attorney right away. Emphasize that the situation is an emergency and demand to speak with someone in the attorney's office.  Demand an immediate call back from your attorney.

4.    Get yourself a pad of paper and a pen. You are going to be writing.
5.    If any media are present (law enforcement authorities will often "leak" such "raids" to the press),have your practice manager tell them to leave the premises as they are trespassing.  Do not speak to them.  Do not give them any "sound bites" or pictures to use on the 6 o'clock news.

6.    Tell the investigators that you have an attorney for yourself and your practice/business.  Give them your attorney's card or name and number.

7.    Obtain the names, titles, and addresses of everyone present; the must identify themselves. Obtain their business cards if they have them. Most will have them.

8.    Close your office immediately and send all patients and all staff home.

        a.    Place a sign on the door stating "Closed due to Emergency. Patients will be rescheduled."

        b.    Advise all staff to go home. They will not be paid for staying as the office is closed.  Come back tomorrow, for business as usual.  A search warrant does not give agents the right to demand interviews.  Employees should be advised immediately that they do not have to consent to be interviewed (it is the decision of each employee whether or not to be interviewed).  The company should provide an attorney to be present during any such interview, if the employee agrees to be interviewed and would like counsel to be present.
9.    Get a copy of the search warrant and keep it.  You are entitled by law to a copy at that time.

10.    Read the search warrant.  It should specify exactly what address(es) and what areas may be searched.  Object to the officers if they attempt to search in areas other than on the search warrant.  Never consent to anything.

11.    The search warrant should also specify exactly what may be seized.  Often these are written so broadly as to cover just about everything, if the search warrant specified patient medical records, you should not be required to give up patient billing records. If the search warrant specifies computers, you should not be required to give up cell phones.  If the search warrant specified "tapes" you should not be required to give up CDs.  If the officers take items not on the search warrant, tell them this and write down what they have taken.  Have your attorney write a letter immediately after the search requesting these items back on the basis that they were taken in violation of the search warrant.
12.    A search warrant is for the purpose of searching and seizing tangible items such as documents and evidence.  IT IS NOT A WARRANT TO QUESTION YOU. DO NOT ANSWER QUESTIONS OF THE INVESTIGATORS, except as to where certain items are.  The investigators will try to question you. Do not fall for this trick. Do not let them engage you in conversation, not even common chit-chat. Tell them you are certain that your attorney would not allow this.

13.    Do not volunteer information to the officers.  They are not there to help you. They are there to build a case against you to send you to prison.

14.    Do not volunteer any passwords or access codes.  You do not have to assist the searchers.

15.    You are entitled to a written, itemized receipt for every item taken.  Ask for this and get this.  Be sure you can read the name of the officer signing it.  Ask him or her to spell his/her name and write it down.
16.    Have your attorney write a letter to the investigators and to the prosecuting attorney as soon as possible after the search requesting the return of your patient records and other similar documents your practice needs to operate.  Your attorney should argue how the absence of such documents and equipment adversely affects patient health and well-being, if that is the case.

17.    You should not obstruct, fight, resist or get aggressive with the officers in any way.  If they have a search warrant, they are probably authorized by law to be where they are.  Use your head.  Getting arrested is not going to do anything positive for you.

18.    The execution of a search warrant means that the agency believes that a crime has been committed.  Therefore, you should immediately start preparing for a criminal defense and retaining experienced attorneys to assist you.

Contact Experienced Health Law Attorneys.

The Health Law Firm routinely represents physicians, pharmacists, pharmacies, optometrists, nurses, health facilities, healthcare related businesses, and other health providers in investigations, regulatory matters, licensing issues, civil and administrative litigation, defense of HIPAA complaints and violations, regulatory matters, inspections and audits involving the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Department of Health (DOH), matters involving the Centers for Medicare and Medicaid Services (CMS), the Food and Drug Administration (FDA), the Agency for Health Care Administration (AHCA), and other regulatory and law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our

website at www.TheHealthLawFirm.com.

About the Author: 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. www.TheHealth Lawfirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone; (407) 331-6620.

KeyWords: Search warrant, subpoena, searching and seizing, execution of a search warrant, health care attorney, health care defense lawyer, representation of health care professionals, health care defense attorney, health law, health care law, health care investigations, Florida health attorneys, Florida health care defense lawyers, The Health Law Firm

“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.
Copyright © 2016 The Health Law Firm. All rights reserved.


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