What Should You Do When the FBI Shows Up at Your Office with a Search Warrant?
Last week two FBI agents showed up at my buddy’s practice with a search warrant and pandemonium ensued. The receptionist gave them access to everything and then left the office, never to be seen again. Is there some kind of procedure I can institute in my office so that my employees know what to do in such a situation and so prevent chaos from occurring?
I am fortunate to share space with Carl H. Lida, Esq. a past president of the Florida Association of Criminal Defense Lawyers and a Martindale-Hubbell AV rated lawyer with over 35 years of experience. (Carl’s telephone number is 800-871-5001 and his e-mail address is email@example.com.) I ran your question past him and the following is Carl’s advice.
Be pro-active. Your receptionist should know to contact you immediately if agents show up at your office. She should also know that she has no authority whatsoever to permit anyone to review the practice’s records ever. Although you may not instruct your staff not to speak to agents, they should know that they are not legally required to do so. People tend to panic under such circumstances and so they should know their rights in advance. Make sure, however, that they know that they may speak to the agents without any fear of retaliation.
Once the agents have identified themselves, make sure that the people representing themselves to be federal or state agents are in fact who they claim to be. It has happened that insurance company employees have misrepresented their status. Politely, ask to see proof, such as badges, and then look at each badge carefully. Make sure that the badge is in fact from the agency that the agents claim to be from. If you still have doubts, call the agency yourself and ask if the people are who they say they are. (If they aren’t, they probably will have cleared out by now).
Once you have established that the agents are who they say they are, have your receptionist call your criminal attorney and tell him or her what is going on. You should have the name and number of a criminal attorney who deals with health care issues in advance. Like insurance, you may never need it but what a relief if you have it. (DO NOT rely on your brother-in-law, the divorce lawyer – it could cost you your license)!
In cases where search warrants are for large practices employing 25 or more people or grossing in excess of $5,000,000.00 per annum and which are incorporated, counsel may be necessary for both the corporation and for individual members of your staff. Although not required, many times the corporation will pay for its staff’s legal fees if necessary or if any of the staff receives a grand jury subpoena.
While the lawyer is being contacted, get the following information and documentation from the agent-in-charge (to whom you are still being very polite):
- What is the search warrant for? Get a copy of both the warrant and the affidavit on which the warrant is based. (Search warrants are based on a sworn affidavit of alleged criminal activity and the hope that the agents have of finding evidence in the location to be searched.) The agents must show you the warrant, they do not have to show you the affidavit but there’s no harm in asking.)
- Ask the lead agent in charge exactly what information or records they are looking for.
- Ask the agent to permit you to provide treatment to any patients already in the waiting room and then cancel the rest of your day’s appointments and send your non-essential employees home. (You do not want the rumor mill to start grinding.)
- Make sure that the lead agent has access to the information that the search warrant permits him to have in a polite, courteous way. This will result in minimal disruption to your practice while the agents are going about their business.
- DO NOT VOLUNTEER ANY INFORMATION ABOUT ANYTHING. Other than providing the agents with the necessary information to locate what they are looking for, nothing should be discussed with the agents about your practice, your records or any other information. Anything you say to the agents may subsequently be used against you at any proceeding whether it be civil, administrative, or criminal. Do not try to “talk your way out of it” or profess your innocence or otherwise tell them that you’re a really good person and this must be some kind of misunderstanding. The agents wont care and it may come back to haunt you by waiving one of your rights.
- Unless the warrant specifically says so the agents are not permitted to see your patients’ HIPAA protected files. If the agent insists, tell him or her (politely), that you are required by law to protect the requested information and you will be happy to turn it over once your lawyer gets a ruling on it from a judge.
- This is not a television show and this matter will not be resolved within sixty minutes. Generally, federal investigations may take from 6-18 months to complete without any charges being filed against you. It will therefore be necessary for you to make sure that you can continue your practice. Keep copies of all your records off-site in addition to the office so that if agents take your computers, you will still be able to practice.
- Never make any decision concerning the investigation without the advice of a lawyer who is experienced in these matters.
- Keep proper records of your interaction with your patients and the treatment prescribed so that you can establish that you are not billing for services not provided.
- Be polite to the agents!
If you have questions concerning the above or with respect to any other legal heath care issues, please e-mail at deborahgreen@thegreenlaw firm.net. I will answer those questions which are of interest to the broadest audience.
Ms. Green has been a practicing attorney since 1977. She is admitted to the practice of law in the State of New York and Florida and is a member of the American Health Lawyers Association, the New York State Bar Association Health Section, the American Bar Association Health Law Section and the Florida Bar Health Law Section. She has formed numerous multi-discipline practices throughout the country and has spoken at many chiropractic conferences.
This column is provided subject to and governed expressly by the terms of this disclaimer. This column is provided for educational purposes only. The accuracy or timeliness of the information presented herein is not warranted, the information presented herein is not intended to be advice as to a specific fact pattern, the information contained herein is not being presented as legal advice and that no attorney-client relationship is hereby established.