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Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.
A visit from the authorities does not necessarily mean that you have been or will be accused of anything improper, but it can hurt your reputation and your business.
“Can we ask you a few questions about your business operations?”
This is how the conversation usually starts when the FBI shows up at your door. Unfortunately, this is a growing reality for providers in today’s enforcement climate. Sometimes the FBI is just gathering information. Sometimes, there are activities in which the providers have engaged which violate the law. Regardless of the reason for the visit, how a provider handles initial FBI contact can greatly affect how quickly and painlessly the file is closed.
1. Remain Calm! I know this is easier said than done, but you’d be surprised how many clients call in a panic when they realize the FBI has arrived. Whether you’ve done nothing wrong, or have anticipated the handcuffs for years, acting excited in front of an investigator is not advisable. Also, nothing unnerves your patients like seeing their provider spar with the authorities. Politely ask the agent to move to a private office out of patient sight to continue your conversation.
2. Verify credentials. I once had a client who received a call from someone who identified themselves as an FBI agent. The client spoke with this person for over an hour and provided detailed business information. He failed, however, to obtain this supposed agent’s name, field office, or reason for calling. This person turned out not to be an agent and my client was duped into sharing confidential information, largely out of fear and a desire to be compliant. Always ask to see a badge, get a name, and write it down. A real FBI agent will have identification and a business card and will provide it to you.
3. I often get asked “Do I have to let the FBI search my office?” The answer is a favorite of lawyers: it depends. If you are presented with a search warrant, you must allow a search of the premises set forth on the warrant. If the warrant allows for a search of the “business office,” there should be no search of patient exam rooms, for example. Absent a search warrant, you are not required to permit a search. Occasionally, I’ll talk to a provider who wonders whether it is better to permit a warrantless search so he won’t “look guilty.” While I won’t pretend to be an expert on the psychological aspects of permitting a search when one is not required, my opinion is that permitting a warrantless search may not always be prudent. To obtain a warrant, an agent needs some sort of information evidencing potential criminal activity. To the extent there is no warrant, this could mean that the agent is there on a pure “fishing expedition,” without any concrete information of illegal activity. Even providers who are the squeakiest of clean may have something lying out in an office that, at first blush, may look suspicious, although in reality, is perfectly lawful. In a warrantless search, you’ve just given the FBI something they can use to go get a search warrant.
4. They’re gone, now what? Call your attorney. Let her know everything that happened: Was there a warrant? Did you get a copy of the warrant? Did you authorize a warrantless search? Was it FBI or another agency? Did the agents say why they were there? Were you provided any paperwork? Are the agents planning to return? Any information you have may be important for healthcare counsel to determine the motives behind an agent’s visit and what it may mean for your practice. A lawyer will typically follow up with the agent to make an introduction and to try to find out what is actually going on.
Above all else remember this: A visit from the authorities does not necessarily mean that you have been or will be accused of anything improper, but it can hurt your reputation and your business. However, if you run a clean operation and handle yourself properly when the time comes, it will hopefully be an investigation that is quickly closed. If a visit from the authorities is something you actually fear because of your current or past conduct-call your lawyer now, before you get that knock on the door.
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