Criminal healthcare investigations may start in a fearsome way, such as the presentation of a court-issued search warrant seeking records and documents, including computers, software, hard drives, etc., or investigators appearing at your home or office for an ambush interview.
You have rights that you must know and exercise.
On May 12, 2020, the Pennsylvania Attorney General announced opening criminal investigations into several nursing homes amid the coronavirus outbreak that had killed over 2,000 residents, more than two-thirds of the state’s death toll. It is anticipated that other states’ top prosecutors will follow with their own investigations, and that the industry will be the “fall guy” for poor decisions by the government. With the very real likelihood of criminal investigations, it is important to understand and to exercise your constitutional rights, particularly with the execution of search warrants and ambush interviews.
The execution of search warrants are carefully orchestrated by the government to maximize the yield of oral, written and electronic information. The first thing you must do is quickly inform all staff that they have the right to refuse to be interviewed without a lawyer present to represent their interest. You may not, however, direct them not to speak to the investigators. Next, instruct someone to contact all staff who are not yet at work. Inform them of what is happening and ask them to not communicate with anyone without a lawyer.
The warrant must describe with particularity the place to be searched and items to be seized. Items seized elsewhere are subject to being disallowed or suppressed. Since the “evidence” is often not within the space or spaces defined in the warrant, the investigators will ask you where it is and whether they may search that space.
You should not respond; or, if you must, simply deny them permission. It is easy to unthinkingly surrender valuable rights and, in the process, potentially hand investigators what could be incriminating evidence. You are under no duty to make their investigation easier.
Though investigators will not inform you, you have the right to refuse to be interviewed and make any statement beyond “hello,” your name and “goodbye.” The fact that you refuse to be interviewed is inadmissible as evidence to establish guilt or criminal state of mind. Refusal to be interviewed is a right guaranteed you under the Fifth Amendment to the U.S. Constitution.
You will not know how much preparation the investigators engaged in before the ambush. They may have read medical records and bills; compared those to statistical norms; spoken to prospective witnesses; obtained bank and public records; subpoenaed third parties; and more. They certainly did not just show up at your doorstep at 6:30 a.m. or 7:00 p.m. because they had nowhere else to go.
What are they looking for? First, information and false exculpatory statements (“FES”), the most dangerous statement you can make. A FES is any statement that you knew or should have known was untrue. Why is this so important? It is itself a crime. Further, lying to the investigators tends to demonstrate a cover up, which demonstrates guilty knowledge that can prove the commission of a crime, even when none was committed.
You should politely tell the investigators you refuse to let yourself be interviewed; that you wish to consult a lawyer; that they are to leave immediately; and that your lawyer will contact them tomorrow or in a few days. For them, this is a frequent and expected outcome.
You must not and may not reach out to any potential witnesses or have any dealings with them, except for those who are unavoidable and in the regular course of your business. Reaching out by you can be viewed or construed as witness tampering. Likewise, you should avoid, and immediately report to your lawyer, any attempts by others to reach out to you.
This is serious cat-and-mouse gamesmanship that can destroy your career, your standing in your local and professional community, and your facility. It can cost you untold amounts in repayments, interest and penalties, and it could result in exclusion from federally funded healthcare programs and even imprisonment.
Nicholas J. Lynn is chairman of Duane Morris LLP’s health law practice. A registered pharmacist with more than 30 years experience in the field, his practice focuses on post-acute care and pharmaceutical law. He is on the American Health Care Association’s legal committee, active in Illinois association affairs and a former division chief and assistant chief counsel to the Illinois Department of Public Health.