Physiatry Practice Management Resources

It's a typical Monday morning at your office. Everything seems normal—until the front door suddenly bursts open and armed FBI agents swarm in. They flash their badges and show a search warrant, demanding immediate access to your medical and financial records. Soon they've loaded your file cabinets and computers onto a truck and sped off, leaving your office in a state of panic.

Think this scenario couldn't happen to you? Don't be so sure. Although it's still not a common occurrence, it's happening more often, as the federal government becomes increasingly aggressive in investigating and prosecuting health care fraud. Last year alone, federal agents served search warrants on doctors' offices and clinics in California, Florida, Illinois, Michigan, Missouri, New York, Tennessee, and Washington. Some of these searches grew out of false claims or "whistle blower" suits brought by practice employees; others resulted from unsolicited tips and undercover investigations.

For the prosecutor, a search warrant is an attractive investigative tool because it has the advantages of speed, surprise, control, and intimidation. Not only does it empower the agents to show up without warning, search the office, and seize any evidence of criminal activity, but it also gives them an opportunity to question any employees who may be around at the time of the raid.

There are some limits on the power of a search warrant, however, starting with the Fourth Amendment, which specifically prohibits "unreasonable" searches and seizures. To convince a judge to issue a warrant, the prosecutor must show "probable cause" to suspect criminal activity. The warrant must identify the premises to be searched and the items to be seized. In practice, however, such descriptions are often generic and broad, and some raids amount to fishing expeditions conducted in hope of finding incriminating evidence.

Typically the search must occur within 10 days of the warrant's issue, between 6 a.m. and 10 p.m. Most searches take place during normal business hours, however, when employees are likely to be available for questioning. Although the search warrant does not compel them to answer the agents' questions, they might innocently do so, perhaps providing potentially damaging information. If the office is unoccupied, the warrant authorizes agents to use force to enter the building, if necessary, although that's not common. The agents are required to produce a copy of their warrant. If they seize records or property, they must also provide an inventory and receipt for the items they remove.

At the prosecutor's request, the judge may seal the warrant, the supporting affidavit, and the inventory of seized property, to prevent public disclosure of an ongoing investigation. But that seal also prevents you or your lawyer from examining the affidavit—which means you won't know what allegations about your practice prompted the search.

Paranoid as this may sound, every practice should have a plan of action to be implemented in the event of a federal raid. Here are a few important steps to follow:

Clearly label all privileged documents—particularly any communications with your lawyer—and segregate them from other files, if possible. Such documents are usually protected from a search warrant, but only if they can be identified quickly and easily. Unfortunately, doctor-patient confidentiality doesn't provide the same protection for medical records, so you can't stop the agents from seizing them.