Overview of Authorized Investigative Demands—Limitations

Authorized investigative demands can be an important source of evidence. Issuance of these demands and access to records obtained pursuant to them, however, must be in accord with a number of legal requirements. This section presents an overview of several specific statutory requirements set forth in 18 U.S.C. § 3486; the statutory language should also be reviewed prior to issuance of an investigative demand to ensure compliance with the more routine provisions.

Subject Matter Limitation

Pursuant to 18 U.S.C. § 3486, the use of authorized investigative demands is limited to investigations relating to "Federal health care offenses." The term "Federal health care offense" is defined in 18 U.S.C. § 24(a) to mean a violation of, or a criminal conspiracy to violate, 18 U.S.C. §§ 669, 1035, 1347, or 1518; and 18 U.S.C. §§ 287, 371, 664, 666, 1001, 1027, 1341, 1343, or 1954 if the violation or conspiracy relates to a health care benefit program. The term "health care benefit program" is defined in 18 U.S.C. § 24(b) as any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item, or service for which payment may be made under the plan or contract.

Pursuant to 18 U.S.C. § 3486, the site designated for the production of the records requested pursuant to an authorized investigative demand must be not more than 500 miles from the place where the authorized investigative demand was served.

Geographic Limitation on Document Return

Limitation on Return Date

Pursuant to 18 U.S.C. § 3486, an authorized investigative demand is required to prescribe a return date that allows a reasonable period of time within which the objects can be assembled and made available. Unlike a forthwith subpoena, an investigative demand may not require the immediate production of records at the time it is served

ographic Limitation on Document Return

Limitation on Return Date

Pursuant to 18 U.S.C. § 3486, an authorized investigative demand is required to prescribe a return date that allows a reasonable period of time within which the objects can be assembled and made available. Unlike a forthwith subpoena, an investigative demand may not require the immediate production of records at the time it is served.

Authority to Compel Testimony Limited

Authorized investigative demands may be used to require the production of records, including books, papers, documents, electronic media, or other objects or tangible things. Pursuant to 18 U.S.C. § 3486, the authority to issue investigative demands to obtain testimony is limited to requiring a custodian of records to give testimony concerning the production and authentication of such records.

Restrictions on Individual Health Care Information

Pursuant to 18 U.S.C. § 3486, health information about an individual acquired through an authorized investigative demand may not be used in, or disclosed to any person for use in, any administrative, civil, or criminal action or investigation directed

against

that individual unless the action or investigation arises out of and is directly related to receipt of health care, payment for health care, or action involving a fraudulent claim related to health. Any other use requires a court order upon a showing of good cause. In assessing good cause, the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. In granting such an order, the court shall impose appropriate safeguards against unauthorized disclosure.

Limitation on Use After Indictment

After an indictment has been issued, authorized investigative demands may continue to be used in furtherance of an ongoing investigation, provided they are not directed to a defendant.

Cf

.

United States v. Phibbs

, 999 F.2d 1053, 1077 (6th Cir. 1993),

cert. denied

, 510 U.S

an order, the court shall impose appropriate safeguards against unauthorized disclosure.

Limitation on Use After Indictment

After an indictment has been issued, authorized investigative demands may continue to be used in furtherance of an ongoing investigation, provided they are not directed to a defendant.

Cf

.

United States v. Phibbs

, 999 F.2d 1053, 1077 (6th Cir. 1993),

cert. denied

, 510 U.S. 119 (1994);

United States v. Harrington

, 761 F.2d 1482, 1485 (11th Cir. 1985) (administrative subpoenas issued by Drug Enforcement Administration between indictment and trial held legal when issued to third parties during continuing investigation).

9-44.203 - Factors to Consider Prior to Issuance of Authorized Investigative Demands

The following factors should be considered prior to the issuance of an authorized investigative demand:

Whether the background of the criminal investigation for which the records are being subpoenaed relates to any act or activity involving a Federal health care offense (as defined in 18 U.S.C. § 24(a)) as required by 18 U.S.C. § 3486.

Whether appropriate consideration has been given to the manner in which to enforce the investigative demand in the event of noncompliance.

9-44.204 - Authorized Investigative Demands—Record Keeping Procedures

In light of the fact that the authorized investigative demand is a new enforcement tool, it is anticipated that its use will be closely tracked. In order to enable the Department to reply quickly to inquiries concerning the use of investigative demands, each United States Attorney's office and the Fraud Section of the Criminal Division should maintain records on the following:

the number of authorized investigative demands issued and the dates of service;

office procedures for the issuance of, and compliance with, authorized investigative demands;

whether any health information obtained pursuant to authorized investigative demands was used in, or disclosed in, any administrative, civil or criminal action or investigation directed against the individual w

the following:

the number of authorized investigative demands issued and the dates of service;

office procedures for the issuance of, and compliance with, authorized investigative demands;

whether any health information obtained pursuant to authorized investigative demands was used in, or disclosed in, any administrative, civil or criminal action or investigation directed against the individual who is the subject of the information;

whether the investigative demand required testimony from a custodian of records;

whether documents were returned pursuant to the authorized investigative demand without judicial enforcement;

whether judicial enforcement of the investigative demand was pursued and the result of that litigation.

The specific manner in which this information is maintained is left to the discretion of each United States Attorney's office and the Fraud Section of the Criminal Division. The challenge for each office is to develop an accurate record keeping system without creating extensive administrative obstacles which render the authorized investigative demand too cumbersome to use.