Do you and your workforce know how to react if government agents enter your place of business with a search warrant? What if investigators demanded to interview employees or insisted on seizing attorney-client privileged documents? How would you organize a response?
A government investigation is something for which every health care provider should be prepared. Of course, the first line of defense is an effective compliance program. Issues can still arise, though, so every company should have a policy and procedure in place for responding to search warrants. Just as you have procedures in place to respond to emergencies and disasters, a policy to guide your organization’s response to a search warrant should be simple enough to be implemented quickly and broad enough to effectively protect your position.
We recommend that this policy and procedure address the following high-level concerns:
- Reinforcing the company’s general policy to cooperate with the investigation;
- Designating a response team, including the team leader and the team member responsible for recording events;
- Checking and copying credentials of the governmental agents and the warrant;
- Notifying and awaiting counsel;
- Instructing employees to assist the response team as required or instructed;
- Informing employees of their rights and responsibilities in the event of an onsite or offsite interview;
- Protecting privileged material;
- Reviewing document retention practices and instructing employees to suspend routine or other document destruction pending further notice from counsel;
- Copying all records searched and/or removed (if feasible) or otherwise creating or receiving an inventory of records searched and/or removed; and
- Preparing for media inquiry.
Your company should not be in the position of deciding how to respond to a governmental investigation after agents are at your office with a search warrant. An effective policy and procedure can ensure that these decisions are already made and your company is best protected in this “emergency” situation.
Want to learn more on this topic? Check out Thompson Coburn's TCLE presentation "What to Do When the Fed Comes Knocking: When Bad Things Happen to Good Companies. How to Respond and Manage an Investigation."
Nicole Jobe is an associate in Thompson Coburn's Health Law Practice Group. She can be reached at (314) 552-6592 or njobe@thompsoncoburn.com