Dickinson Wright

The United States Department of Justice (“DOJ”) and state law enforcement agencies have robust teams investigating and prosecuting health care fraud. Law enforcement often uses advanced data analytics and algorithmic methods to identify newly emerging health care fraud schemes. DOJ also employs nine regional strike forces located throughout the country to bring together groups of prosecutors, FBI agents, and key administrative agencies to combat health care fraud. Critical time will be lost, and important steps may be missed if an organization waits until an investigation is underway to decide how to respond to a government investigation.

6 Steps for Responding to a Search Warrant

  1. Company policy

Health care companies should implement a written policy on how to handle government investigations. Attempting to put together a response on the fly is fraught with danger and will likely put the company at risk. For search warrants, the policy should include designating a lead person within the company, such as an experienced attorney or trained manager, to oversee the company’s response. There should also be a designated manager at each health care facility who is responsible for initially engaging with law enforcement and notifying the lead corporate official (these corporate leaders and managers are collectively referred to as the “Response Team”).

  1. Initial response

The first person to encounter law enforcement is often a receptionist or security guard. That person should request a copy of the search warrant and inform the designated health care facility manager that law enforcement is present. The manager should then notify the Response Team. In addition, an alternative manager should also be named in the event the primary manager is not available. An experienced attorney or corporate leader should arrive on site as soon as possible to interact with the lead agent.

The leader of the Response Team should attempt to obtain as much information as possible from the lead agent. Questions should include:  What is being investigated? Who are the investigators conducting the search? What agency do they represent? Who is the prosecutor leading the investigation?

The agent may decline to answer these questions, but there is no harm in asking. If not already obtained, the Response Team leader should request a copy of the search warrant, which the agent is legally required to provide.

  1. Review the search warrant

The Response Team should only provide law enforcement access to the areas designated in the search warrant. If the agents want to search multiple buildings, then those buildings must be listed in the search warrant. The Response Team should not consent to any search beyond the areas listed in the search warrant. Similarly, the Response Team should not consent to the seizure of any items not authorized by the warrant.

If law enforcement takes action that is contrary to the express language of the search warrant, the Response Team should voice an objection and note the circumstances surrounding the objection such as the time the objection was made and the name or badge number of the law enforcement officers that were present when the objection was lodged. However, company employees should never attempt to block any part of the search or otherwise interfere with the search, even if law enforcement exceeds the authority set forth in the search warrant. The time to challenge the scope of the search warrant will be at a later date in court.

  1. Handling employees during the search

The corporate policy should make clear that employees are not required to speak to law enforcement, and they should refer all questions to the Response Team. Notwithstanding, employees sometimes speak to law enforcement out of fear or because they are nervous. Employees also sometimes believe that if they are not read their Fifth Amendment Miranda rights, then their statements cannot be used against them or the company. That is most likely not true. Corporate employees are typically not placed in legal “custody” when questioned, which means their Fifth Amendment Miranda rights are not triggered.

The best practice is for the company to send the employees home during the search while the Response Team remains on the scene to observe the search. Employees should also be informed that if they elect to speak to law enforcement – in violation of the corporate policy – then they must be truthful at all times to avoid obstruction of justice allegations.

  1. Observe the search

The Response Team should observe the search and listen to the conversations that are taking place between the agents, assuming law enforcement permits them to be present in the areas where the search is taking place. To the extent possible, the Response Team should take detailed notes of what they observe and hear. If the agents attempt to seize privileged or classified information, then the Response Team should inform the agents that the information is privileged or classified and make note of what is being seized. If the agents nonetheless continue to seize the privileged or classified information, then the Response Team should ask to speak to the prosecutor on the phone to attempt to persuade the prosecutor to stop that part of the search. In the alternative, the Response Team should attempt to have the agents mark the materials or boxes as “privileged” or “classified.”

If the search warrant authorizes law enforcement to seize samples, then the Response Team should request that a split sample be seized, allowing a portion of the sample to remain at the office to allow for future testing by the company. If the agents refuse, then the company should attempt to take its own sample from the same item after the search is complete.

The agents are required to provide the company with an inventory of what was seized. After the search is complete, the Response Team should supplement the inventory list with their own notes to provide as much detail about the items that were seized.

  1. Post-Search Warrant

As soon as possible after the search is complete, corporate counsel (or retained outside counsel) should debrief the Response Team and other employees who either spoke to law enforcement or have relevant information. Employees’ notes should be collected, and a plan should be put in place regarding next steps, including whether court action should be taken to challenge the search. In most cases, it is critical for the company to retain outside counsel who has the requisite experience with law enforcement to properly address the many issues that will arise as the government investigation proceeds.


Responding to health care fraud investigations is oftentimes a complex, time-consuming, and expensive endeavor. An initial investigation by one agency can lead to multiple investigations at the state and federal level and can involve both civil and criminal authorities. Having a written policy in place with appropriate employee training is a critical first step to ensuring a proper response. It is also a best practice to have experienced outside counsel available should a government investigation arise. The last thing a health care company will want to do in the midst of an active government investigation is be forced to work to find and retain qualified outside counsel.

For more information, please contact Seth Waxman (202-466-5956) or your Dickinson Wright Health Law attorney.