by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the June 2002 issue of the Journal
Question: Can you give me some advice as to what I should or shouldn't do if a governmental enforcement officer appears at my office? Fortunately, this hasn't happened to me, except in my nightmares. But I've heard the government is targeting dentists. What's the real story?
Answer: Although most dentists will never be investigated for fraud or other unlawful billing practices, dentists should know and fully understand their legal rights and responsibilities in the event that government agents show up unannounced seeking information or to serve a subpoena or execute a search warrant.
Here are a few points to keep in mind:
Maintain composure. Although the presence of government agents in your office will be unnerving, remain calm. Ask to speak to the agents in your private office, away from patients who may be in your waiting room. Ask the agents to state the purpose of their visit. The agents may have come to your office to ask you questions, to serve a subpoena, or to search for documents and items identified in a search warrant.
Contact your attorney. You are not legally obligated to answer questions that the agents ask. I encourage you to tell them that if they wish to speak with you about the facts, you first need to talk to your attorney. In any event, you should promptly contact your attorney.
Watch what you say. If you elect to talk to the agents without your legal counsel being present, remember that anything you say can be used against you. Statements that you may think are innocuous may be incriminating. If you choose to speak with the agents, tell the truth. The odds are that the government will be able to prove any false statements you make, thereby escalating the seriousness of the matter. Do not volunteer information that is not requested. State only facts of which you have personal knowledge. Never sign a statement without legal advice. You can let your employees know that it is their personal decision whether or not they talk to the government agents, but do not instruct your employees not to speak to the agents. This could expose you to obstruction of justice charges.
Listen! Keep track of what the agents tell you and any information that you or your staff give them.
Don't volunteer records. Do not voluntarily allow the agents to review any records without consultation with your attorney.
Comply with a subpoena. If the agents have a subpoena for documents, you should accept it without any argument. Just make sure you receive the subpoena and any attachments that would delineate the records to be produced. No documents will be required at the time. The subpoena will indicate a date by which a response is required. This will allow you time to review the matter with your attorney before responding.
Beware of search warrants. If a search warrant is served, you cannot prevent the agents from carting off the documents and other things subject to the search warrant. You can be arrested for interfering with the execution of a search warrant. However, you can ask the agents to give you a receipt for the documents and the items taken. If they refuse, have your attorney deal with this later.
"Think." Use common sense. For example, after the agents leave, do not alter any of your records for the purpose of concealing evidence, as documents can be chemically tested to determine the date of entry. Also, establish a relationship with experienced legal counsel ahead of time. If you are investigated, at least, you'll be prepared.
In my opinion, the actual instance of criminal investigations and prosecutions against dentists is highly exaggerated by so-called "experts" and "consultants." Enforcement agencies understand that mistakes occur in the complex billing process forced on health professionals. These agencies have made it clear that their only interest in prosecutions involves intentional, fraudulent wrongdoing.