§346-42  Administrative inspections and
warrants.  (a)  Issuance and execution of administrative inspection
warrants shall be as follows:



(1)  A judge of the circuit court, or any district
judge within the judge's jurisdiction, and upon proper oath or affirmation
showing probable cause, may issue warrants for the purpose of conducting
administrative inspections authorized by this chapter or rules hereunder, and
seizures of the property appropriate to the inspections.  For purposes of the
issuance of administrative inspection warrants, probable cause exists upon
showing a valid public interest in the effective enforcement of this chapter or
rules hereunder, sufficient to justify administrative inspection of the area,
premises, building, conveyance or records in the circumstances specified in the
application for the warrant;



(2)  A warrant shall issue only upon an affidavit of
an individual having knowledge of the facts alleged, sworn to before the judge
and establishing the grounds for issuing the warrant.  If the judge is
satisfied that grounds for the issuance exist or that there is probable cause
to believe they exist, the judge shall issue a warrant identifying the area,
premises, building, conveyance or records to be inspected, the purpose of the
inspection, and, if appropriate, the type of property to be inspected, if any. 
The warrant shall:



(A)  State the grounds for its issuance and the
name of each person whose affidavit has been taken in support thereof;



(B)  Be directed to a person authorized by the
attorney general or the director of human services to execute it;



(C)  Command the person to whom it is directed
to inspect the area, premises, building, conveyance or records identified for
the purpose specified and, if appropriate, use reasonable force in conducting
the inspection authorized by the warrant and direct the seizure of the property
specified;



(D)  Identify the item or types of property to
be seized, if any;



(E)  Direct that it be served during normal
business hours and designate the judge to whom it shall be returned;



(3)  A warrant issued pursuant to this section must be
executed and returned within ten days of its date unless, upon a showing of a
need for additional time, the court orders otherwise.  If property is seized
pursuant to a warrant, a copy shall be given to the person from whom or from
whose premises the property is taken, together with a receipt for the property
taken.  The return of the warrant shall be made promptly, accompanied by a
written inventory of any property taken.  The inventory shall be made in the
presence of the person executing the warrant and of the person from whose
possession or premises the property was taken, if present, or in the presence
of at least one credible person other than the person executing the warrant.  A
copy of the inventory shall be delivered to the person from whom or from whose
premises the property was taken and to the applicant for the warrant;



(4)  The judge who has issued a warrant shall attach
thereto a copy of the return and all papers returnable in connection therewith
and file them with the clerk of the issuing court.



(b)  The designated representative of the
attorney general or the department may make administrative inspections of
provider premises in accordance with the following provisions:



(1)  For purposes of this section only, "provider
premises" means:



(A)  Places where providers are required to
keep records; and



(B)  Places where providers conduct business
related to their receipt of payments from the medicaid program for health care,
service or supplies.



(2)  When authorized by an administrative inspection
warrant issued pursuant to subsection (a) the representative upon presenting
the warrant and appropriate credentials to the owner, operator, or agent in
charge, may enter providers premises for the purpose of conducting an
administrative inspection.



(3)  When authorized by an administrative inspection
warrant, the representative may:



(A)  Inspect and copy records required by this
chapter to be kept;



(B)  Retain records required by this chapter to
be kept for a reasonable period of time, not to exceed forty-eight hours, for
the purpose of examination, audit, copying, testing or photographing;



(C)  Inspect, examine and test diagnostic
devices used in the provision of health care, service or supplies to a medicaid
recipient;



(D)  Inventory any stock of any substance used
in the provision of health care, service or supplies to a medicaid recipient
and to obtain samples thereof;



(E)  Inspect, examine and test, within reasonable
limits and in a reasonable manner, provider premises and equipment as necessary
to assure compliance with this chapter.



(4)  This section does not prevent the inspection
without a warrant of property, books and records pursuant to an administrative subpoena
issued in accordance with law, nor does it prevent entries and administrative
inspections, including seizures of property, without a warrant:



(A)  If the owner, operator, or agent in charge
of the provider premises consents;



(B)  In situations presenting imminent danger
to health or safety;



(C)  In situations involving inspection of
conveyances if there is reasonable cause to believe that the mobility of the
conveyance makes it impracticable to obtain a warrant;



(D)  In all other situations in which a warrant
is not constitutionally required. [L 1978, c 105, §8; gen ch 1985; am L 1987, c
339, §4]



 



Case Notes



 



  Probable cause as defined in section is not capable of
measurement against some objective standard and is violative of the fourth
amendment.  481 F. Supp. 1028.



  Where warrants issued under section would authorize search
and seizure of psychiatrist's office and records, the section violates
constitutional provisions relating to unreasonable searches and seizures and
right to privacy.  481 F. Supp. 1028.