Under Siege What To Do When Armed Government Agents Show Up At Your Hospital s Door With A Search Warrant

Transcription

1 Under Siege What To Do When Armed Government Agents Show Up At Your Hospital s Door With A Search Warrant Chris Bennington Bricker & Eckler LLP Shannon DeBra Bricker & Eckler LLP Ilah Naudasher Kettering Health Network

2 Today s Agenda Setting the Stage Search Warrant Basics Step-by-Step Guide HIPAA Implications Do you have an effective policy? Are your employees prepared? Questions 2

3 Setting the Stage Tuesday morning, 9:15 a.m. The hospital is fully staffed, lots of patients in the hospital for procedures, lots of visitors in waiting rooms and the lobby A team of 20+ armed FBI and OIG agents show up at your hospital unannounced, produce a search warrant to search the premises and seize evidence for a vaguely described fraud investigation. What now? 3

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5 Pacific Hospital of Long Beach April 5, :00 a.m. FBI and IRS agents arrive to serve a search warrant Agents seized records and went through computer files October 2013 Hospital sold to new owner February 2014 Former owner of hospital pled guilty to conspiracy and paying kickbacks for referrals for spine surgery 5

6 Agents raided the hospital College Vista Convalescent Hospital June 20, :00 a.m. FBI, IRS, OIG, CA agents arrive to serve a search warrant Uniformed officers could be seen screening visitors and taking away documents in cardboard boxes Allegations of convalescent health care fraud 6

7 November 29, 2016 Wimbledon Health Partners Boca Raton, FL FBI executed search warrant in health care fraud investigation Agents spent hours going through records of the facility that specializes in cardiovascular testing 7

8 What s Going On? Armed federal or state law enforcement agents show up unannounced to execute the search warrant This may be the first time you have any indication of an investigation Likely that investigation has been going on for a while before search warrant obtained 8

9 Who is there? What s Going On? FBI IRS OIG/HHS Medicaid Fraud Control Unit/Attorney General USPS, OPM, TriCare State police 9

10 What s Going On? What types of violations might be involved? Suspected criminal activity Medicare/Medicaid/TriCare billing fraud Kickbacks Stark Law (as basis for false claims liability) Tax fraud Mail fraud 10

11 What is a Search Warrant? 11

12 What is a Search Warrant? 12

13 What is a Search Warrant? 13

14 What is a Search Warrant? A search warrant is a written order issued by a judge directing a law enforcement officer to search and seize specific premises for specific property. Why Used? Enable the government to immediately seize and preserve evidence Give agents the opportunity to talk with employees Sends a very public message that a criminal investigation is underway and that you are likely the target in some way 14

15 What is not a Search Warrant? A search warrant is not an arrest warrant A search warrant is not permission to detain/interview individuals A search warrant is not a subpoena A subpoena is a document requiring a person to appear in court, produce documents, or provide testimony at a later date Documents reviewed for responsiveness; copies are produced Privileged documents are not produced 15

16 Search Warrants A valid search warrant must contain: the judge's name your hospital/entity name and address the date the place to be searched a description of any items being searched/searched for A search warrant must: Be executed within x days of issuance (will state on warrant) Be executed during the day (unless court authorizes otherwise) 16

17 Search Warrants Government agents executing the search warrants must: Announce their authority and purpose Use force only when entry is denied Provide a copy of the search warrant to the party to whom it is directed Seize only those items identified in the search warrant Provide a written receipt and inventory of items seized/taken 17

18 Search Warrants Agents may extend the search beyond the specified area of the property or include other items in the search beyond those specified or listed in the warrant if it is necessary to: Ensure their safety or the safety of others; Prevent the destruction of evidence; Discover more about possible evidence or stolen items that are in plain view; or Hunt for evidence or stolen items which, based upon their initial search of the specified area, they believe may be in a different location on the property. 18

19 Step-by-Step Guide 19

20 Step-by-Step Guide 1. Call legal counsel, compliance office, and senior leaders 2. Do not resist or attempt to block or delay the search 3. Get a copy of the warrant and look at it closely - Look at dates and exact premises specified if not accurate or they want to search areas outside those listed, ask them to get a revised/corrected warrant 4. Ask for ID/business cards of all agents present make a copy if permitted. If not, make written notes of names and agencies. 20

21 Step-by-Step Guide 5. Try to send home/relocate patients, visitors and nonessential personnel 6. Be polite and respectful at all times 7. Monitor the search (and take notes), but do not obstruct 8. If privileged materials are among the materials being seized, flag them and ask to segregate Attorney-client privileged materials: letters, s, memos to/from legal counsel (even if not exactly sure what was seized, flag by location and/or attorney name) 21

22 Step-by-Step Guide 9. Maintain an inventory of what is being searched/seized, but stay out of the way (they also have to provide an inventory, but may be delayed) 10. Ask to make a copy of essential business records they plan to seize (paper and electronic) 11. Search warrant is not custodial - no right to interview personnel, but they can try (may make it sound obligatory: you re free to leave once you talk to us ) NOTE: You do need to tell agents where documents are located. 22

23 12. Employees: Step-by-Step Guide They can speak to agents if they want to, or not Always tell the truth; don t interfere in search They have the right to have the hospital s counsel present They can tell you what questions were asked/what agents said during interview (debrief after interview) 13. Expect electronic devices to be seized or imaged: computers, hard drives, storage devices (USB flash drives), mobile devices, company-issued smartphones 14. Be careful of what you are asked to sign; don t waive rights or attest to/confirm things you aren t sure of OK to say need to consult with legal counsel before signing 23

24 Step-by-Step Guide 15. Have legal counsel contact the prosecutor as soon as feasible Try to establish rapport, express cooperation, find out if company and/or individuals are targets, make arrangements for return of essential records and equipment Lets the government know you are represented by counsel 16. Do not leave agents alone on the premises 17. Employee Messaging: Explain the search is part of investigation sometimes part of participating in Medicare/Medicaid Intend to cooperate 24

25 Step-by-Step Guide 17. Employee Messaging (continued): Business is continuing as usual Please maintain all documents related to those seized do not alter/destroy in an attempt to help/protect the company or any individuals Your choice whether to speak to agents Request that they not discuss the investigation with anyone outside the company (family, friends, media) at this time since it s still ongoing 25

26 Step-by-Step Guide 18. Debrief / Consider an internal investigation What did the search/interviews/comments focus on? Conduct under attorney-client privilege 19. Media response Search likely to generate media attention Designate spokesperson to respond Formulate a response: No Comment We are open for business as usual, cooperating with the government s investigation, and have no further comment at this time Something else? 26

27 Step-by-Step Guide 20. Send out freeze letter / legal hold Suspend document destruction/non-retention practices Preserve all materials that may be pertinent to investigation Take steps to gather and safeguard all potentially relevant materials 27

28 HIPAA Implications General Rule: Need individual s authorization to release PHI unless an exception applies Exception: Uses and disclosures required by law, 45 CFR (a) Exception: Disclosures for judicial and administrative proceedings, 45 CFR (e) Exception: Disclosures for law enforcement purposes, 45 CFR (f) 28

29 HIPAA Implications Disclosures for law enforcement purposes A covered entity may disclose PHI in compliance with and as limited by the relevant requirements of: A court order or court-ordered warrant, or a subpoena or summons issued by a judicial officer A grand jury subpoena An administrative request, including an administrative subpoena or summons, a civil or an authorized investigative demand, or similar process authorized under law 29

30 Do you have an effective policy? Warrants vs. other documents Clearly-defined scope Responsible employees Requesting identification Who to contact Directions for other employees Handling interview requests Speaking with investigators Prohibitions (obstruction, destroying documents, etc.) 30

31 Do you have an effective policy? Release of records Privileged documents Monitoring the search Requesting an inventory Handling non-warrant situations Subpoenas Civil Investigative Demands Federal agents (on and off premises) CMS and other agency audits/investigations who have a right to immediate access 31

32 Are your employees prepared? Who needs to know what? Compliance training for all employees: We are a company that values compliance and doing the right thing We cooperate with government investigations Since we treat Medicare and Medicaid patients, we may sometimes be involved in audits and investigations by those agencies Agents may try to speak to current and former employees in the course of their investigations may contact employees at their homes or other locations to take them by surprise 32

33 Are your employees prepared? Who needs to know what? Compliance training for all employees: If you are approached by a government agent, you can choose whether to talk, you can ask to reschedule We will provide legal counsel to attend interview if you wish If you choose to speak, be truthful We would like to be informed if you are contacted about anything related to the company 33

34 Are your employees prepared? Who needs to know what? More detailed training for front line response team Who is your front line? Think across all locations Receptionist/front desk staff/security Inside counsel Outside counsel Small team of managers and support staff who know nature and location of business records/property Who has authority to accept process of the search warrant? Make your government investigation response policy available on company intranet 34

35 Are your employees prepared? Things that might come up during execution of search warrant: Can they take/search employee cell phones? Work phone probably yes, if covered by search warrant Personal cell phone Ask questions about it being covered by the warrant, object, but don t refuse to cooperate 35

36 Are your employees prepared? Things that might come up during execution of search warrant: Can they put us in a conference room and not let us leave until we answer questions? Officially no search warrant is not custodial They may say you can leave after you speak and it will feel like they cannot leave They may imply that it is wrong for you to refuse to speak to them They may not threaten you, require you to speak, or suggest they may offer a deal if you speak OK to ask if the employees can leave 36

37 Are your employees prepared? Things that might come up during execution of search warrant: They may say outrageous things to take employees off guard They may tell employees that they are working for a corrupt company/owner and should spill the beans to save themselves They may share personal information about an employee to catch them off guard They may tell employees that people may be arrested They may run names against open arrest warrants when they find out who is present 37

38 Are your employees prepared? Other Considerations They may approach employees at their home, fitness club, other location for an interview Employees should know that they may ask to reschedule and/or have counsel present If employees exercise their right not to consent to be interviewed, government may obtain testimonial subpoenas Conduct mock search warrant execution? Regardless of how much training and preparation you do, this is something you cannot fully prepare for Nature of the beast of search warrant is to catch you unprepared and off-guard 38

39 Questions? Chris Bennington Bricker & Eckler LLP Shannon DeBra Bricker & Eckler LLP Ilah Naudasher Kettering Health Network