By Christopher E. Brown, J.D., The Health Law Firm, and George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health LawRecently we have seen government prosecutors and agencies, including the Medicaid Fraud Control Unit (MFCU), the U.S. Attorney General’s (AG) Office, and local sheriff and police departments use the Florida Contraband Forfeiture Act against health professionals and health facilities in health-related cases.
A prompt, aggressive defense to these actions may recover the property or funds seized and, more importantly, a good defense can be used to help resolve any pending criminal charges.
Civil Forfeiture of Property is Used to Fight Alleged Criminal Activity.
The civil forfeiture of property has become a popular tool for state and federal agencies to combat alleged criminal activity. In Florida, the Florida Contraband Forfeiture Act, Sections 932.701 through 932.706, Florida Statues permits the government to seize personal property if there is probable cause to believe that property is either an instrumentality or the proceeds of criminal activity. In federal cases, such as Medicare fraud cases, the Federal Forfeiture Act can be found at 18 U.S.C. §983.Typically, a forfeiture action begins when personal property is seized as a result of a violation or arrest. The owner of the personal property is then entitled to a notice within five (5) days of the seizure.
Remember If You Are The Subject of a Seizure, Ask For:
1. An inventory of the seized items.
2. A Receipt.
3. The business cards or names, addresses, titles and phone numbers of each official or agent involved.
What is The Adversarial Preliminary Hearing?
Your most important right after a seizure is the right to an adversarial preliminary hearing. This request must be made in writing within fifteen (15) calendar days of receipt of the notice. Sometimes the notice is given at the time the property is seized; it is important not to lose or misplace it.
When an adversarial preliminary hearing is held, the Court will review the verified affidavit and any other supporting documents and take testimony to determine whether there is probable cause to believe that the seized property was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act.
While the burden of proof at this initial stage favors the government, the adversarial preliminary hearing is one of the fastest and most effective ways to fight for the return of the property and assert any defenses that exist in the case. Even if unsuccessful at this hearing, the property owner is still entitled to a later civil forfeiture trial in which the government must prove by a preponderance of the evidence that the property was used in the commission of or obtained through the proceeds of criminal activity. Often it is unable to do this and far more defenses are available for use at the trial.
The key to success in civil forfeiture actions is to immediately consult with an experienced attorney after the property has been seized. Your best defense is to act as quickly as possible.
Use of Adversarial Preliminary Hearing to Obtain Information for Defense.
The Adversarial Preliminary Hearing is also a tool by which a defendant can obtain early, detailed discovery on his or her case. During the hearing the law enforcement authorities will be required to testify under oath and produce any documentary evidence. This can prove invaluable to the criminal defense attorney in later criminal proceedings.
Did the Government Exceed the Bounds of Propriety?
Although the government would contend otherwise, we believe the main purpose in the government’s use of civil forfeitures is to shut down the alleged criminal and make it so he or she cannot hire an attorney to defend the person(s) accused. This does, unfortunately, often work.
However, there are defenses and often the government exceeds the bounds of propriety in its overzealousness. We have successfully defended, for example, cases in which:
– A sheriff’s office seized a spouse’s personal car for which she had traded in her old car.
– A teenage daughter’s college account that had in it only money she had earned from her part-time job.
– Money from a business owner’s purse which had been given to her by her mother to pay for her hospital labor and delivery charges.
– Money from a roll-over IRA account which had been invested long before any criminal activity was alleged to have occurred.
– Money from a family member’s account which had come from social security payments made for that person.
Every Person Should File a Claim.
If a spouse or other family member has an interest in the property, especially if that person is named on the account or title, that person should file a separate claim for return of the property and demand a Preliminary Adversarial Hearing. Even if the initial hearing is not successful in achieving an early return of the property, such defenses should prevail at the trial of the case.
Contact Health Law Attorneys Experienced in Civil Forfeiture Cases.
The Health Law Firm routinely represents physicians, nurses, pharmacists, dentists, mental health counselors and other health providers in investigations, regulatory matters, licensing issues, litigation, civil forfeitures, inspections and audits involving the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
What Do You Think?
What do you think of the Civil Forfeiture Act being used against health care professionals and health facilities? Please leave any thoughtful comments below.
About the Authors: Christopher E. Brown, J.D., is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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