Are You Under an OIG Investigation? Here's What to Expect
The Office of Inspector General (“OIG”) is an office within the U.S. Department of Health and Human Services (“HHS”) that is charged with the duty of enforcing Medicare, Medicaid, and other benefit programs relevant to health care professionals. Health care providers constantly face a great deal of scrutiny from the government as a result of the prevalence of health care fraud.
This increased scrutiny is amplified by the novel coronavirus and has therefore caused federal agencies to promulgate more individual protections. As a result, health care providers are more likely to be audited or become the center of an OIG investigation. It is important for providers to not only be aware of the process of an OIG investigation—including the OIG subpoena process—but also to understand how an OIG defense attorney can guide you through an audit or investigation. This article, drafted by OIG defense attorneys at Oberheiden, P.C., highlights these features.
OIG Investigations Generally
The OIG is the law enforcement office within the HHS. Its mission is “to provide objective oversight to promote the economy, efficiency, effectiveness, and integrity of HHS programs, as well as the health and welfare of the people they serve.”
The OIG consists of special agents and law enforcement officers who are trained in identifying providers that have allegedly engaged in fraudulent activities. These agents and officers initiate investigations as well as prosecutions. To carry out their investigative duties, the OIG can make warrantless arrests, issue federal subpoenas demanding documents and testimony, execute search and arrest warrants, carry firearms, and so on.
OIG investigations are lengthy processes that are launched when the OIG has reason to believe that a health care provider was or is involved in some form of fraud. The Office generally learns about instances of fraud from either billing data, federal program details submitted by the provider, or from a whistleblower claim or “tip.”
If the OIG concludes that the information submitted by the provider lacks proper documentation or raises red flags indicative of fraud, it may initiate an internal investigation. Similarly, if the information revealed by the whistleblower in the “qui tam” claim reveals fraud, the OIG is empowered to launch an investigation.
Qui tam lawsuits are heavily relied on by many federal agencies to reveal possible fraudulent activity by providers. For instance, last year, a qui tam lawsuit helped the OIG investigate and ultimately reach a settlement of$1.2 million with an orthopaedic surgery and physical therapy practice for violating the False Claims Act and the Stark Law. The most important tool relied on by the OIG to gather evidence is the subpoena power.
The OIG Subpoena
OIG subpoenas are used to determine whether a provider has engaged in some type of health care fraud such as federal program fraud or billing fraud. They are called “administrative subpoenas” because they can be granted under federal law without the need for federal judge approval.
The OIG’s subpoena power is broad. A subpoena for documents will generally request an exorbitant amount of information including, but not limited to, billing records, marketing or promotional materials, email correspondences, financial records, and so on. The documents and testimony gathered during the subpoena process helps the OIG determine whether there are adequate grounds to pursue civil or criminal charges against the provider. Challenging an OIG subpoena is very difficult.
Typically, a federal judge will not invalidate these subpoenas unless there is clear evidence that it was issued beyond the OIG’s authority, that it is requesting information irrelevant to the OIG’s investigation, or that its compliance would be unreasonably burdensome to the provider.
Receiving an OIG subpoena does not always mean that the OIG will charge you with something. The subpoena process is often used by the OIG to gather information about a provider’s practice and to help it decide whether any fraudulent activities have occurred. In fact, your duty after receiving a subpoena is to prevent the OIG from bringing charges. The best way to achieve this is to retain a defense attorney that will communicate with the OIG on your behalf, cooperate with the OIG, and negotiate in your best interests.
Implications of the OIG Subpoena
Receiving a subpoena from the OIG means that the Office has received enough information to investigate your Medicare, Medicaid, or other federal benefit program billing practices. These investigations can lead to both civil and criminal charges.
Civil penalties can include treble damages, fines, recoupments, injunctions, exclusion from participation in health care benefit programs in the future, and so on. Criminal penalties can also include criminal fines and jail time. For both civil and criminal cases, health care providers risk losing their professional licenses. The OIG often pursues individuals and companies under the False Claims Act, Stark Law, Eliminating Kickbacks in Recovery Act, Anti-Kickback Statute, and so on.
After receiving an OIG subpoena, you must first understand what is being asked of you. An OIG defense attorney can guide you through this process. It is important to heed the deadlines in an OIG subpoena. Failure to strictly adhere to a deadline could lead to contempt or other criminal charges by the Department of Justice (“DOJ”).
“OIG investigations can lead to serious civil and criminal charges. Even simple mistakes—such as billing or coding errors, insufficient substantiation supporting medical necessity, benefit program ineligibility, and so on—can all lead to protracted OIG investigations. It can be especially worrisome if you are issued a subpoena by the OIG that demands years of documents and records. If you are under investigation by the OIG, it is important to take prompt action by hiring an experienced OIG defense attorney.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.
How An Attorney Can Help You Through an OIG Investigation
Getting caught in the middle of an OIG investigation can be an understandably scary time. Fortunately, there are steps you can take to mitigate the consequences of an OIG investigation—hiring a federal OIG defense attorney. Below are key ways an attorney can help you navigate the OIG investigative process:
Narrowing the scope of the OIG’s investigation, including working on a reduced and less cumbersome subpoena;
Arguing, where necessary, that the subpoena or the OIG’s investigation is lacking any appropriate basis;
Identifying the nature of the OIG investigation (e.g., civil versus criminal);
Negotiating with the OIG on your behalf including defending you against charges, cooperating to achieve a reduced fine, and even arguing your case in court;
Reviewing your subpoena documents for privileged materials;
Determining whether your case falls under a safe harbor provision that protects you from liability;
Explaining the OIG investigative process to you;
Keeping you updated on the status of the investigation; and
Making sure all your constitutional guarantees are properly asserted and preserved;
Being under investigation by the OIG can be a stressful time, especially where your role in the investigation is unknown. It can also be dangerous because an investigation can lead to serious charges including significant fines, imprisonment, and a host of other penalties. The OIG investigates individuals and entities suspected of engaging in health care fraud and aims to enforce benefit programs including Medicare and Medicaid.
One of the tools relied on by the OIG during its investigations is the subpoena power. A subpoena can request an outrageous amount of information from you and your practice whether in the form of documents or testimony. To guard against liability, retaining an experienced OIG defense attorney can help reduce your liability exposure since your attorney can negotiate with the OIG and defend you to the fullest extent.