Hearing these words is every health care provider’s worst nightmare. But, with the increasing use of state and federal police powers to investigate allegations of fraud, abuse and neglect at hospitals and other health care facilities, the odds of hearing them at some point are growing.

Most providers have no idea what to do if a state or federal official shows up at their facility with an official search warrant asking for documents. Obviously, the first step is to contact your attorney for advice. Request permission from the officer or agent serving the warrant to call your attorney before the search begins. But what if they will not delay the search or you can’t reach your attorney?

We’ve developed a few guidelines to help providers that find themselves in that position and need to know what to do, at this moment, while they are contacting or waiting to hear back from counsel. These apply in any situation where state or federal officials show up at your facility, armed with search warrants issued by an enforcement agency (such as the State Attorney General, the FBI, the Office of the Inspector General, etc.) or a state or federal court:

• Be courteous and professional. Do not interfere with the search. Cooperate in the document production but do not volunteer information. Do not conceal or destroy any documents. Cease all regularly scheduled destruction of documents.
• Get the name of the lead agent, the agency for which he or she works, and his or her address and telephone number.
• Request a copy of the search warrant, including the affidavit. Note the areas the agents can search and the items they can seize. If the agents begin to search places or seize items not identified in the search warrant, bring it to the lead agent’s attention. Fax a copy of the warrant to your attorney.
• Identify attorney-client and other privileged information. The agents are permitted to seize this information but should keep it segregated.
• Request permission to have a few employees accompany agents to monitor the search. Tell these employees not to make any substantive statements to the agents. Have employees take notes clearly indicate (a) the areas searched, (b) the documents or items seized, (c) the questions asked by agents, and (d) the names of employees interviewed by agents. Try to make a record of everything said by the agents conducting the search.
• The agents may detain all persons on the premises while the warrant is being executed. Ask permission to send nonessential employees home. If permission is granted, advise employees to take home only personal possessions and not to take any hospital documents or files with them, including electronic files. Advise employees who do leave that they will be contacted regarding when to return to work, or that they should contact a designated individual at a certain time and date to find out when to return to work.
• Develop an employee announcement advising employees that the premises are being searched pursuant a search warrant, the hospital is cooperating with officials executing the warrant, and employees are not to interfere with the search.
• Explain to employees their rights.

1. Ask that the agents refrain from interviewing employees until your attorney arrives. Inform the employees they have the right not to be interviewed by the government. It is the individual’s choice whether he or she agrees to be interviewed. If employees agree to be interviewed, they can have counsel to represent them at the interviews.
2. Advise employees that they may be contacted at home by government agents, and their same rights to be interviewed or to decline apply there as well. Also advise employees that even if they choose not to be interviewed, they could still be subpoenaed to testify before a grand jury.
3. The company should not instruct employees to decline to be interviewed. That choice belongs fully to each employee.
4. The company should determine whether it is willing to pay for representation of its employees. If so, it should inform employees.
5. Have employees inform the hospital if they have been contacted by a government agent, been interviewed, or received a grand jury subpoena. Debrief any employees who are interviewed or questioned.
6. Provide a name and telephone number of a company representative employees can contact if they have questions.

• Make a list In advance of documents or equipment essential to ongoing patient care and business operations. Ask the agents to allow photocopies to be made of essential documents that will be removed or to agree to a workable arrangement to provide prompt access.
• Create a list of documents or items seized during the search. Request a written inventory prepared by the agents of the documents or items seized. Request any property that is seized but not listed or not sufficiently described on the inventory to be added. If the agents refuse, request a “receipt” of items seized during the search that are not adequately described on the inventory.

Hospitals following these simple guidelines will significantly improve their ability to manage both their immediate responses to search warrants and the subsequent effects of the disclosure, while educating their employees how to avoid uncertainty and act responsibly.