As a health care professional in the United States, it can often feel like you are operating under a microscope. Despite your best efforts to navigate the complicated regulations of health care compliance, you may still find yourself at the center of an investigation into perceived healthcare fraud.
It can be a stressful and overwhelming experience. You should know everything as you undergo the subpoena and audit process.
OIG subpoenas are issued by the Department of Health and Human Services and the Office of Inspector General to investigate health care fraud allegations without getting the federal court involved. Typically, the fraudulent accusations are related to alleged violations of Medicare fraud, Medicaid fraud, the False Claims Act, or the Stark Law.
The subpoenas typically request documents about billing records, the structure of the business, financial information, and email communications between senior management members.
Most people are surprised to receive a subpoena from Inspector General, typically initiated after a current or former employee has provided information to the government they believe is credible. In other words, former disgruntled employees are making allegations of misconduct.
The information provided by an “insider” must be valid enough to start an investigation into the business operations. This reporting of a business by an insider is usually done by filing a “qui tam,” also called a whistleblower lawsuit.
Another reason the Office of the Inspector General might get involved in your business is through an investigation by federal agencies, such as the FBI, DEA, or US Postal Service. Our federal criminal defense lawyers will examine this topic in more detail below.
The Office of Inspector General — A Review
The Office of Inspector General (often abbreviated OIG) is the Department of Health and Human Services (HHS) law enforcement arm. Health care fraud is very prevalent.
OIG officials are tasked with investigating and auditing providers suspected of participating in fraudulent activity. They have been given authority to issue subpoenas for fraud in federal health programs, such as Medicare or Medicaid.
OIG subpoenas are an administrative process, and it's not always clear from the subpoena whether the investigation is civil or criminal.
The OIG is seeking to receive records that they believe will be useful to prove the underlying allegations.
Since the OIG is a part of the federal government, its investigations usually deal with allegations of federal program fraud.
The subpoenas will typically request a considerable amount of documents over several years.
What Triggers an OIG Subpoena?
OIG investigations are usually initiated for a few different reasons:
- Upon OIG reviewing billing data that raises questions,
- Based on suspicious details submitted by a provider regarding federal programs (i.e., Medicare),
- Whistleblowers, such as former employees, submit inside knowledge of wrongdoing (typically via a qui tam lawsuit).
After enough information has been received, OIG officials will issue a subpoena to the individual or business of interest and move to investigate potential crimes under one or more federal statutes, including:
- 42 U.S.C. § 1320A-7B - Anti-Kickback Statute,
- 18 U.S.C. § 287 - False Claims Act,
- 18 U.S.C. § 1347 - Health Care Fraud,
- Stark Law.
What Documents Are Requested by OIG Subpoenas?
A subpoena issued by the OIG typically does not require providers to be interviewed. Most often, the subpoena will be a request to produce information and documents for the OIG agents to review, such as:
- Billing records,
- Financial documents,
- Marketing material,
- Information regarding billing practices.
Sometimes, OIG officials will attempt to talk to providers in person or over the phone. These chats can expose health care professionals to unnecessary risk. Before engaging in any in-person activity with an OIG agent, it is advisable to have a lawyer on your side.
While it may be tempting to ignore an OIG subpoena, you must treat them as urgent matters. Failure to respond to or comply with a subpoena will only worsen your situation, including potential criminal charges of contempt or obstructing an investigation.
What Are the Potential Consequences of Subpoena Findings?
The results of OIG audits can lead to criminal charges, the enforcement of civil actions, or even both. Here are some potential outcomes of these investigations:
- Financial penalties and fines,
- Restitution of fraudulent collections,
- Exclusion from federal health care programs,
- Additional oversight/probation,
- Liens on the property,
- In extreme cases, criminal prosecution, including imprisonment.
It's important to note that receiving a subpoena does not necessarily mean that you or your business will be charged with a crime. Another outcome of an OIG investigation is that no enforcement actions are taken.
How Should You Address an OIG Subpoena?
Upon receiving a subpoena, the first step is contacting a lawyer. The scope of these investigations can be vast. They often involve complex regulatory rules and massive stacks of paperwork.
You do not want to make a mistake. Retaining experienced legal counsel will lessen your burden and help you plan the best strategy toward a desirable outcome for your case.
Providing all the documents, e-mails, and information requested by the OIG is paramount. Sometimes these audits go back several years, making producing the required materials difficult and time-consuming.
In addition to avoiding additional charges for non-compliance, getting the materials into the hands of the OIG officials will show that you are taking the matter seriously and willing to cooperate.
Once the subpoenaed information has the OIG, the next goal is to push for the most favorable resolution.
When defending OIG subpoenas, our primary goals are to prevent a criminal investigation, keep the investigation confidential, and negotiate a favorable outcome. Lawyers might use a few different defenses to limit exposure for the provider and mitigate disruption to the business. Some of these include:
- Arguing the validity of the information that triggered the subpoena
- Negotiating reduced fines,
- Negotiating to keep the violations from becoming criminal charges,
- Fighting the scope of the subpoena to make producing the documents less burdensome,
- Determining whether any of the requested materials fall under doctor-patient privilege,
- Helping to ensure the audit is completed in plain sight while keeping the health care provider updated on the entire process.
- Attempting to keep the investigation confidential.
If you have received an OIG subpoena, you will need to retain an experienced federal criminal lawyer to review the government's case, such as whether it is a civil or criminal investigation. You need to protect your business and reputation.
Eisner Gorin LLP is located in Los Angeles County, California. We provide federal legal representation across the United States. You can reach out for a case review via phone or use the contact form.