THEY'RE THE VISITORS you hope you never see. One day, you could open the door of your home medical equipment business and find representatives from the U.S. Department of Health and Human Services' Office of Inspector General.

If you think it can't happen, think again. As state and federal agencies crack down on health care fraud, it is becoming increasingly common for OIG agents-or those from the Federal Bureau of Investigation, the U.S. Postal Service or state and local agencies-to drop in unexpectedly on HME businesses to obtain information in connection with an investigation or audit of the companies' operations. Normally coordinated by the Department of Justice, the audits and investigations conducted by these agencies focus on a number of issues, including possible kickbacks, accuracy of certificates of medical necessity, accuracy of patient testing (e.g., pulse oximetry tests) and alleged billing irregularities.

It's pretty serious business, and any HME company can become a target for such audits and investigations. The question is, what can you do if it happens to you?

Before the Agents Arrive Inform your employees now-and periodically hereafter-of the following:

* Your company procedures if a subpoena, records request or search warrant is served, as well as the rights and obligations of the government agents, your company and the employees.

* An employee's right to choose whether to be interviewed by the government agents, his or her right to consult an attorney before deciding whether to be interviewed, and his or her right to have an attorney present during the interview.

* The employee's obligation, if he or she consents to an interview, to answer all questions truthfully. If the employee does not know the answer to a question, he or she should simply say that.

A caution: You cannot instruct your employees not to speak to government agents. Such an instruction might subject the employee, your company, you and other company executives to criminal charges for obstruction of justice or witness tampering.

Other precautions to take:

* Keep a detailed inventory of the documents and other relevant items kept on the premises and where they are located. The inventory should be updated periodically. In this way, if your request to inventory the items being seized is refused, you can determine which records and items were taken by the agents.

* Back up your computer system at least weekly, if not daily. You might want to keep backup copies in a separate location.

* Designate a company representative to be in charge of communicating with agents. Generally, this person should be a manager or supervisor.

When the Agents Arrive As soon as the government agents enter your company's premises, take the following steps:

* Determine which agent is in charge and ask to see his or her identification.

* Request the agent in charge to direct all questions to your designated company representative.

* Ask the agent in charge to identify the other agents and the agencies they represent. Note: It is critical to treat the agents with respect and courtesy.

* Ask the agent in charge if he or she will serve a search warrant, agency subpoena or records request. Ask to see the document. Make a photocopy and read it carefully. Then, as soon as possible, contact senior management personnel.

* Ask the agent in charge for permission to contact your attorney and request that further action be delayed until an attorney arrives in person or is contacted by telephone.

* Take notes on what the agents say and do, whom they talk to, what documents or other items they review, and what, if any, items and documents they take. Try to note the dates and times of these actions so a chronological record of the events can be created.

* If the agents are executing a search warrant or will work on the premises, designate an office or work area where they can work. Be sure it is outside your employees' earshot.

* If you are served with an agency subpoena or records request, one or two employees should be assigned the responsibility of confirming that the information requested is provided within the required time. It is important to comply with all the terms of the subpoena or records request. However, a subpoena or records request does not allow the agents to search company offices or demand immediate delivery of the records requested.

* If you are served with a search warrant, ask the agent in charge for permission to let nonessential employees go home. Unless the agent in charge has arrest warrants, he or she has no authority to require employees to stay. You might want to have trusted and knowledgeable employees stay during the search to assist in monitoring the agents and taking notes. Before sending employees home, reassure them that the company is not closing and that their jobs are not in jeopardy. Remind them they have the right to refuse to answer questions from the agents.

Remember, a search warrant does not permit the agents to question employees. Ask the agent in charge to instruct the agents not to talk with the employees. Your employees have no obligation to be interviewed by the agents. If an employee is willing to be interviewed, request that your company's attorney be allowed to attend the interview, in person or by telephone, and that the interview be recorded. Ask that the interview be conducted in the office or work area designated for the agents so that other employees will not overhear the interview.

After the Search As soon as possible after the search, contact your attorney to arrange interviews with each employee who witnessed the search, monitored the agents' activity or was contacted or interviewed by an agent.

You also might wish to issue a press release to place the search in the proper context so it is not misinterpreted by the media. This action also will inform your customers and suppliers that your company will continue business operations.

Subpoenas or Records Request: AN AGENCY SUBPOENA or records request seeks information within a reasonable period of time. Generally, it does not allow agents to search the premises, interview employees or demand immediate delivery of documents.

If you are asked for information or documentation you do not currently have and cannot provide within the specified time, tell the agent and indicate you will forward the requested information and documentation as soon as possible. If necessary, ask the agent for time to speak with your attorney. Politely explain to the agent in charge that future communication should be directed to your attorney.

When gathering the requested information, make three photocopies of all documents produced in response to the request. One copy will be provided to the governmental agency, the second copy should be given to your attorney, and the third should be kept with the originals in your company records.

Search Warrant: A SEARCH WARRANT allows the unannounced search of a specifically identified location and the seizure of any property that might constitute evidence of the acts that prompted the investigation or audit.

To limit the agents' actions to the authority granted under the search warrant, read the warrant carefully and understand exactly what it permits the agents to do, as well as its limitations. The records, information or other items that might be subject to seizure under the warrant most likely will be quite broad. Ask the agent in charge to let you photocopy documents to be taken and make a detailed inventory of all documents and items being seized.

The agents will attach a numbered card on the door of each room to identify where items were seized. Write down each room's assigned number. If possible, tape-record or videotape the search as it is in progress, as well as the premises after the search.

The agents will want to download files from your company's computer system or even take the computers with them. If they wish to download files, ask to make backup copies first so you will not lose important data if damage occurs during downloading. If the agents want to take the computers, ask the agent in charge to let your employees assist in downloading or otherwise copying the computer files. Employees should not take any action that would delay or hamper the agents' search. Any such action might be considered an obstruction of justice and subject the employee, your company and its executives to criminal charges.- J.W.B., J.S.B.