The OIG (Office of Inspector General) is an arm of HHHS, or Health and Human Services. The OIG is a federal agency that seeks to uncover fraud, waste and abuse occurring within government funded healthcare programs. If you are under investigation by the OIG or receive an OIG audit you need to act quickly and appropriately. Not properly handling an OIG investigation can lead to criminal and civil consequences for your healthcare business.
Finding out you or your healthcare business is under an OIG investigation can occur in several ways. You may get an OIG audit request to produce documents. You may get a subpoena to produce documents. Sometimes, OIG investigators will show up to your place of business and request to interview you and your staff. No matter how you find out you are under investigation by the OIG, you need to seek experienced healthcare counsel immediately.
Although OIG investigators may appear to be nice and friendly, you should never speak to these investigators without your attorney present. OIG investigators, or any investigators from any federal agency, are not on your side. Remember, if an OIG agent wants to talk to you, he or she likely believes you have done something wrong. Anything you say to this agent can and will be held against you.
OIG audit and investigations can be initiated for a number of reasons. Reasons your healthcare business can be investigated include the following:
- Your healthcare business is suspected of violating federal anti-kickback laws
- Your healthcare business is suspected of billing for medical services that were not provided
- Your healthcare business is upcoding medical procedures and services
- Your healthcare business is violating federal self-referral laws
- Your healthcare business is billing for services that are not medically necessary
- Your healthcare business is utilizing unlicensed healthcare providers
The above list is not comprehensive and does not list all reasons why you may be subject to an OIG investigation or audit. Often, your healthcare business will receive a request for documents in the form of a subpoena or audit request in connection with the investigation. What records or documents are requested can give you insight into the reason you are under investigation. At this stage, your attorney plays a critical role in finding out the reason for the investigation. You attorney can and should contact the OIG investigator to get an understanding of the underlying reasons for the investigation. Establishing a good relationship with the OIG investigator and understanding the reasons for the investigation can be the crucial way to keep the investigation from escalating into something more severe.
OIG investigators, after they have conducted their investigation and reviewed your records (if they were requested) can make the decision to share their findings with federal authorities, such as the US Attorney’s Office. At this point, the US Attorney has discretion on whether to bring charges, civil or criminal against your healthcare business as a result of the investigation. Letting an investigation escalate into a potential criminal indictment is a key reason why defense counsel should be engaged as soon as you realize you are under investigation. It is much easier to resolve an investigation than it is to resolve a criminal indictment.
As a healthcare business, they are several things you should be doing in the normal course of your business that can prevent OIG investigations from occurring and help an investigation resolve in your favor should one arise.
- Document Retention. Your healthcare business should always employ sound document retention polices. It makes it that much more difficult to respond to and resolve an OIG investigation if you cannot produce requested documents. Healthcare businesses are also required by law to keep certain documents and you do not want to add fire to the OIG investigation if your business is illegally disposing of documents.
- Compliance. Your healthcare business should have a compliance program of some form in place. Compliance programs show that your business is committed to adhering to federal healthcare rules and regulations. By having a working compliance program, you often can negate any allegations that you intended to do something wrong. Even if you do not have a compliance program in place once you find out you are under investigation, this should not stop you from putting one in place. Establishing a compliance program, even after being put under investigation, can show your desire to be compliant with all federal and state laws.
- Internal Investigations. Internal investigations conducted by your healthcare attorney are important ventures into understanding the nature of the OIG allegations and important in establishing a corrective action plan should one be needed. During the course of the internal investigation, if your attorney discovers your business is operating improperly then remedial steps can be immediately activated to correct the improprieties. Showing the OIG your willingness to address improper practices within your business can go a long way in resolving the investigation in a positive fashion.
At our firm, we have represented hundreds of medical professionals and medical entities under investigation by the OIG. Most of these cases resulted in no civil nor criminal liability for our clients. We take a proactive approach in handling OIG investigations and do not sit and just wait for the OIG to tell us what they found. We seek to get involved as soon as possible and employ a creative approach to combatting any allegations the OIG may throw at you. We have a team of former federal prosecutors and former federal agents that know how OIG investigators conduct their investigation, therefore we know all the tricks and tactics of these investigators. Your reputation in the healthcare industry is important and you should not let allegations of wrongdoing by the OIG derail your business and your livelihood.