RCPA - Rehabilitation and Community Providers Association
 
 

Archives

The FBI is at your Reception Desk - Now What?

In this new era of aggressive fraud and abuse investigations, all healthcare providers must prepare for the reality of federal agents or other law enforcement officers appearing at their reception desks asking questions, requesting documents and possibly even presenting search warrants. Healthcare providers should have a plan in place and train their receptionists so that any contact with law enforcement is handled professionally, does not violate patient privacy rights, or waive the rights of the healthcare provider.

Initial Contact
The initial contact and response to law enforcement inquiries either by phone or by person is very important because many times this first contact will determine the tone of the investigation, its scope and the willingness on the part of the government to make accommodations based on your time or staffing constraints. Additionally, it is important that the initial contact does not inadvertently waive the privacy rights of patients or the rights of providers such as the right to counsel, the right against self-incrimination, or the attorney-client privilege.

Your response plan should include the following steps for the initial contact:

  • The person contacted whether it be the receptionist or the secretary to the chief financial officer should immediately contact a "designated person" within the management of the healthcare provider to advise him or her of the presence of the agents.
  • The agents should be requested to remain in the reception area until the designated person comes to greet them.
  • The receptionist or initial contact person should not give the agents the name or office location of any individual other than the designated person.

This approach ensures that the designated person or others within the institution are advised in advance (if even by only a few minutes) of the agents' presence or inquiries. It also contains the agents within a defined area and prevents them from wandering through the institution or office unescorted. The law enforcement agents will understand this approach and should be agreeable to this response. The only exception would be if the agents have search warrants. Suggested steps for dealing with search warrants are discussed on the next page.

Designated Person's Responsibility
The designated person ("DP") should be an individual with a significant degree of authority and responsibility. You may wish to use your head of security or CFO. You should also identify a "back up" DP who would be available if the primary DP is unavailable.

The designated person should:

  • Ascertain the identity of the agents and their respective agencies (whether state and/or federal);
  • Request to see their credentials - the privacy rights of your patients demand this;
  • Ask for business cards; if cards are not available, the agent's names and phone numbers should be written down;
  • Inquire as to the nature of the agent's visit;
  • Inquire as to whether the agents are conducting a civil or criminal investigation;
  • Ask why the investigation was initiated;
  • Indicate to the agents that it is the fully and completely cooperate with the authorities in their investigation;
  • Advise the agents that, as a result of numerous state and federal laws restricting the disclosure of patient information, the DP is not in a position nor is authorized to answer any inquiries by the agents but will direct the agents to counsel (in other words, the DP should not answer substantive questions); and
  • Advise the agents that he/she will contact counsel and make arrangements for counsel to contact the agents immediately so that the agents' investigation can be coordinated by counsel.
Search Warrants
The agents should not be asked if they have a search warrant. If the agents have a search warrant, they will make you aware of it. If the agents have a search warrant, the DP will be given a copy of the warrant and the agents will demand to be taken to the area or areas to be searched. If your receptionist is presented with a search warrant, he or she should immediately contact the DP but should not take the agents to the area to be searched. The DP should be the escort for the agents. It should be stressed that both the receptionist and DP should be immediately responsive to the agents.
  • The receptionist should call the DP. Do not surprise the DP with the agents in tow.
  • If the DP and alternate are unavailable, notify the president and counsel for the hospital.
  • Once the DO is advised of a search warrant, he/she should:
  • Notify counsel for the hospital;
  • Read the search warrant;
  • Obtain and maintain a copy of the warrant; and
  • Not agree to any search broader that the warrant.

The agents will normally agree to wait a reasonable amount of time for the DP to appear after being notified by the receptionist. However, keep in mind that the agents may be suspicious of any noticeable time lapse that would permit the destruction of computer files or other documents. Thus, a timely response is critical. Moreover, the agents may not check in with the receptionist and may immediately appear at your records department to secure the premises. In that event, the records department should notify the DP but permit the search.

Issues of Concern
In the case of a request for documents, the healthcare provider must be cognizant not to waive any potential privileges such as the attorney-client privilege, attorney-work product privilege, doctor-patient privilege, the Fifth Amendment privilege and the attendant "act of production" privilege which is based on the Fifth Amendment.

In addition to these provider rights, there are both state and federal protections afforded to patients. Most of the federal and state privacy laws governing patients do not permit providing documents pursuant to a law enforcement request without a court order (e.g., in Pennsylvania, patient specific HIV statutes). The healthcare provider could be subject to a civil lawsuit for the violation of the privacy rights of a patient if documents are turned over to agents without an appropriate court order.

Law enforcement agents cannot compel an interview of your employees. The grand jury can compel testimony, but an employee has a right not to submit himself to an interview by law enforcement agents. An employer may not instruct an employee to refuse to submit to an interview. Such an instruction could subject the employer to an obstruction of justice charge. An employer (or supervisor) may only advise the employee that he or she has a choice and that he may speak with counsel prior to making that choice. Counsel for that employee, as opposed to counsel for the employer, may advise the employee not to speak with law enforcement agents without fear of encountering an obstruction of justice charge. Some law enforcement agencies will call employees at home.

Unfortunately, these employees will often talk with agents because they are not aware that they have the choice to refuse. You should advise your employees of their right to counsel and their right to consult with counsel prior to any interview.

The issues that you will have to face if employee interviews or employee grand jury appearances are requested or demanded include but are not limited to whether: (i) the employee will need to obtain independent counsel; (ii) the healthcare provider will provide independent counsel for the employee; and (iii) joint defense agreements should be entered into between the employee and the healthcare provider. Most of the issues arising in this area depend on an identification of who is the target or the subject of the law enforcement investigation. However, counsel should be involved immediately after the initial contact to assist you in negotiating this mine field.

Conclusion

What You Should Do

  • Identify the designated person and several alternates;
  • Train receptionists and executive secretaries on how to react to visits from agents; and
  • Consider including an article in your employee publication on how to handle off-hour requests from law enforcement or investigative agents.

By planning for this contingency, you will not be caught off guard and inadvertently waive any of your rights or the rights of your patients.

The Pennsylvania Community Providers Association wishes to express appreciation to Kirkpatrick and Lockhart LLP for provision of the above information.

< Back