RESPONDING TO A SUBPOENA:

 

        Your day is going along just fine. Then, a government investigator (an “Agent”) presents you a subpoena. What should you do?

 

First, look at the subpoena to see what agency is involved.

 

• Federal Bureau of Investigations (“FBI”)

• Department of Justice (“DOJ”)

• Office of Inspector General (“OIG”)

• Department of Defense (TriCare Health Program)

• State Medicaid Fraud Control Units (“MFCU”)

• Centers for Medicare and Medicaid Services (“CMS”)

• Medicare Administrative Contractors (“MAC”)

• Department of Health

 

Tell the investigator to kindly have a seat as you would like to review the subpoena in your office.

Ask yourself how the investigation came about?

 

• Medicare Administrative Contractor (“MAC”) audit

• Government contractor review

• Competitor complaint

• Patient complaint

• Qui Tam (Whistleblower)

 

Administrative subpoenas such as those submitted by the Department of Health investigating medical license issues, may demand to interview the physician’s or the hospital’s medical staff. In contrast, a subpoena duces tecum is a subpoena that directs a person to bring specified document to a particular place such as a government agency. This type of subpoena may also require a specified person presenting the documents to testify as a witness.

 

You should read the subpoena carefully as you are only required to respond to the subpoena within the scope of the request itemized within the subpoena. You will be provided a specified time within which to respond. This provides you the opportunity to contact your attorney to have him review the subpoena and begin constructing a defense strategy.

 

A subpoena may be civil or criminal in nature. For a grand jury subpoena, the nature of the investigation must be criminal in nature.  The standard to issue such a  subpoena is lower than for a search warrant and there is no requirement to demonstrate probable cause. An investigation may be conducted on the suspicion that a law is being violated. In the alternative, the subpoena may be issued merely to ensure that a law is not being violated.

 

Contrast a subpoena to a search warrant. The Fourth Amendment of the Constitution guarantees us the right to be secure in our person, papers and effects against unreasonable searches and seizures. A search warrant may only be conductive upon a finding of probable cause, based on a review of all the circumstances, using a reasonable person standard. A search warrant permits the government agent to search and seize tangible property that is described in the search warrant or located in an areas specified as covered by the search warrant. Additionally, evidence of a crime may be seized if it is “in plain view” during search regardless of whether it was described in the warrant.

 

A Civil Investigative Demand is a federal order requirement the production of documents, answers to interrogatories, oral testimony, or all of the aforementioned. This tool is commonly used during false claims investigation.

 

The Agent presenting to your office request an interview with you employees and this request may come in conjunction with a subpoena or a search warrant. You cannot prohibit your employees from speaking with the government agent. The Agent may interview the employee at his or her home. You may, however, inform the employees in your office that they have the right to speak to the investigator or refuse to be interviewed. If the employee chooses to be interviewed, the employee may have his own attorney present and/or have the physician’s attorney present. However, the physician attorney must tell the employee that he does not represent the employee but represent his employer, the physician. Once the interview is initiated, the employee may end the interview at any time and refused to continue the interview.

 

A medical provider is required to cooperate with the government investigator and cooperation with a subpoena, search warrant and a Civil Investigative Demand is mandatory. Failure to do so will result in fines and/or imprisonment. Furthermore, the Office of Inspector General (OIG) may exclude the provider from the Medicare/Medicaid program for failing to grant immediate access following a reasonable request by the government Agent. The provider may not engage in witness tampering or act to obstruct justice.

 

Have a formal written policy circulated as to how your staff will respond to a subpoena.

 

It is important for providers to have a written plan or policy informing employees how to respond should a government agent arrive with a subpoena. The physician must be aware of the plan and consider reviewing and rehearsing the plan with the staff. If the physician has more than one office, there should be one person at each office responsible for coordination the response to the Agent’s subpoena.

 

The staff should be prepared to :

1-ask for and verify the Agent’s identification and the agency with which he is affiliated. Ask to see the Agent’s badge and ask for a business card. If you have any question, call the affiliated agency to verify the identity of the Agent and that he works for the government agency.

2-Review the subpoena or search warrant and make a copy of it.

3-Call legal counsel for representation. If you don’t have legal counsel, call me at (941)445-6017. Tell my staff you need to speak to me immediately because you have just be served with a subpoena.

4-Ask that the search not be initiated until arrival of counsel.

5-Send all non-essential personnel home.

6-You must cooperate with the Agent(s) but make sure you do not state that you consent to the search. If you are asked by the Agent whether he may walk around to look over the premises, do not indicate that you do and do not have any of your staff provide the agent permission. This does not mean that you prevent the Agent from doing so. All it means is that you are not consenting to the Agent’s request. If the Agent does so anyway, allow him to do so.

7-You may accompany the Agent through the premises during the investigation.

8-Make a list of all documents that are seized and the time and date they were in the Agent’s hands.

9-Ask if copies may be made of the documents being seized.

10-If computers are being seized, ask if you can copy the files or the hard drive.

11-State your objection if the Agent(s) move about outside the areas identified by the search warrant, or if documents or items are seized that are outside the scope of the search warrant. However, do not interfere with the seizure.

12-Do not sign receipt of documents seized unless the document lists all of the documents seize, indicating that the receipt is complete and accurate.

11-Each Agent (if there is more than one) should be accompanied by an employee and that employee must state an objection is the Agent goes beyond the scope of the search, but again not interfere.

 

*Leslie Tar, Esq.—practicing in Port Charlotte, Ft Myers, Sarasota, Naples, Tampa, Orlando, Gainesville, Tallahassee, Pensacola, Vero Beach, Boca Raton, Ft. Lauderdale, Miami, and throughout Florida and nationally.