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

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

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

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

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

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

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

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

(3)  A warrant issued pursuant to this section must beexecuted and returned within ten days of its date unless, upon a showing of aneed for additional time, the court orders otherwise.  If property is seizedpursuant to a warrant, a copy shall be given to the person from whom or fromwhose premises the property is taken, together with a receipt for the propertytaken.  The return of the warrant shall be made promptly, accompanied by awritten inventory of any property taken.  The inventory shall be made in thepresence of the person executing the warrant and of the person from whosepossession or premises the property was taken, if present, or in the presenceof at least one credible person other than the person executing the warrant.  Acopy of the inventory shall be delivered to the person from whom or from whosepremises the property was taken and to the applicant for the warrant;

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

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

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

(A)  Places where providers are required tokeep records; and

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

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

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

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

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

(C)  Inspect, examine and test diagnosticdevices used in the provision of health care, service or supplies to a medicaidrecipient;

(D)  Inventory any stock of any substance usedin the provision of health care, service or supplies to a medicaid recipientand to obtain samples thereof;

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

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

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

(B)  In situations presenting imminent dangerto health or safety;

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

(D)  In all other situations in which a warrantis not constitutionally required. [L 1978, c 105, §8; gen ch 1985; am L 1987, c339, §4]

 

Case Notes

 

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

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