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Responding to Administrative Subpoenas

If you or your corporation is issued an administrative subpoena, it is imperative that you begin a parallel internal investigation and properly respond to the administrative subpoena. Chapman Law Group’s seasoned healthcare attorneys have a wealth of experience in assisting corporate clients facing federal and state governmental investigations. Among our attorneys are health care litigators, former prosecutors and investigators who can you prevent or mitigate potential culpability.

Regulatory and law enforcement authorities have a vast number of compulsory production tools at their disposal. In the administrative context, regulators may utilize administrative subpoenas or audits to gather patient records and other material of evidentiary value. When the target of any type of investigation receives a demand for compulsory documents, there are a few essential steps that must be undertaken regardless of the type of request, such as preservation, review and production of relevant materials.

Prior to responding to the administrative subpoena, counsel must first review the relevant request. This will give counsel vital information about the scope, target(s), subject matter and focus of the administrative investigation. In many cases, a review of the document may suggest that the entity receiving the document is not the target of the investigation, but rather a subject or even a witness of the investigation. For instance, if a toxicology laboratory receives an administrative subpoena for its lab requisition forms for one particular provider, it is not likely to be an investigation into the laboratory, but an investigation of the provider instead. Alternatively, if the administrative subpoena issued to the laboratory requests requisition forms, lab results and the contract with the lab’s medical director, the lab is likely one of the targets of the investigation.

Preservation of relevant material is the first step that must be taken by the target of any investigation. After reviewing the request, counsel will also understand what documents are sought and can prepare a plan for preserving, reviewing, and producing relevant material. Counsel should construe a government request in the broadest sense possible when reviewing the request to preserve documents.  This must occur when the target first learns that it is the target of an investigation through notification of an audit, a target letter or correspondence from a regulatory body. Preservation usually comes in the form of a litigation hold and effective policies and procedures that direct the organization how to respond to a litigation hold. Some circuits have expanded this duty to require preservation when a “government inquiry is reasonably anticipated, threatened or pending.” This duty requires “reasonable” and “good-faith” actions to preserve potentially relevant information related to the anticipated litigation. In order to properly preserve potentially relevant information, counsel should work with the target to identify all sources of information and any means by which data could be spoiled or destroyed, and properly communicate the need to preserve potentially relevant data for later review. Effective policies and procedures regarding data retention and destruction will be valuable in achieving this goal by providing a uniform method of document preservation and destruction that will allow counsel to temporarily modify to prevent document spoliation.

After counsel has had an opportunity to submit a preservation request to employees and preserve relevant data, counsel must then begin the process of gathering and reviewing responsive data to determine if the data is 1) responsive to the request and 2) non-privileged. This process must begin by gathering all potentially responsive information regardless of privilege. A spreadsheet or database should be created so that counsel can track whether information has been reviewed and if an assessment has been made as to its responsiveness to the request and potential privilege.  This will prove useful in creating a privilege log later. For example, the spreadsheet could contain the following headings:

Figure X-X

Title:
Custodian:
Date Reviewed:
Responsive?
Privileged?
Date Produced:

As each document is reviewed, counsel should make a notation on the spreadsheet and sufficiently describe the basis for non-production due to a claim of privilege or that the document is non-responsive to the request. For email correspondence, the log should also contain the sender, recipient, and any carbon copy (cc) information. Information regarding privilege should be sufficiently detailed in order to support future objections that the information is privileged. The log must be updated as additional documents are reviewed and the log must clearly indicate the date of production to the government and any objections.

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