Aggressive Lawyers for OIG Subpoenas
The Office of Inspector General (OIG) is the division of the U.S. Department of Health and Human Services (HHS) responsible for enforcing the laws that govern health care providers’ participation in benefit programs such as Medicare and Medicaid. If you have received a subpoena from the OIG, you must take prompt and decisive action to minimize your risk of facing civil or criminal charges.
As a health care provider in America, you are under constant scrutiny by the federal government. This is an unfortunate reality of the nation’s health care fraud epidemic, which costs programs like Medicare and Medicaid tens of billions of dollars every year. With the help of data analytics, the OIG and other federal authorities are able to quickly identify providers engaged in practices that appear to be fraudulent (whether those practices are actually fraudulent or not). This means that providers in all sectors of the health care industry are increasingly facing invasive audits and investigations.
If you have received an OIG subpoena, it is important that you understand exactly what this means and what it doesn’t mean for your business or practice. It is also critically important that you respond to the subpoena appropriately, as mistakes could easily lead to further inquiry and the potential for civil or criminal prosecution. At Oberheiden, P.C., we bring decades of experience as defense lawyers and former government attorneys to helping clients avoid costly mistakes and protect themselves against OIG investigations.
What Health Care Providers Need to Know about OIG Subpoenas
What is the OIG?
The OIG is a federal law enforcement authority housed within HHS. It is the largest inspector general’s office in the federal government, and its mission is, “to protect the integrity of Department of Health & Human Services (HHS) programs as well as the health and welfare of program beneficiaries.” It seeks to accomplish this mission by investigating and prosecuting health care providers suspected of defrauding Medicare, Medicaid, and other health care benefit programs. It relies on partnerships with agencies such as the Centers for Medicare and Medicaid Services (CMS), the Drug Enforcement Administration (DEA), and the Federal Bureau of Investigation (FBI). Together, these agencies work to vigorously pursue health care providers suspected of submitting false and fraudulent billings for federal benefit program reimbursement.
Why Is the OIG Investigating My Health Care Business or Medical Practice?
The OIG investigates health care providers when it has reason to believe that they may have engaged in some form fraud involving Medicare, Medicaid or other federal benefit program. Most often, this is the result of one of two factors: (i) the government’s analysis of a provider’s billing data, or (ii) a whistleblower (or “qui tam“) claim. If the data reveals “abnormalities” in a particular provider’s billing as compared to other providers, or if a qui tam lawsuit includes claims which appear to be substantiated, the OIG can launch an investigation. During the investigation, the OIG will typically use its subpoena power to determine if there are grounds to pursue civil or criminal charges.
What is a Subpoena?
In the context of an OIG investigation, a subpoena is a formal request for documents or information issued directly by the OIG. This is known as an “administrative subpoena.” Federal law grants the OIG the power to issue subpoenas in connection with its investigations of health care providers without the need to seek approval from a federal judge.
The OIG’s administrative subpoena power is uniquely broad, and federal judges will not invalidate an OIG subpoena unless it:
(i) exceeds the OIG’s statutory authority,
(ii) seeks information that is not reasonably relevant to the OIG’s inquiry, or
(iii) is otherwise unreasonably broad or burdensome.
Given the OIG’s broad mandate to protect federal health care benefit programs and prevent waste and abuse, successful challenges to OIG subpoenas are rare.
Does Receiving a Subpoena Mean I am Being Charged with a Crime?
No. Receiving an OIG subpoena means that the OIG has decided to look into the Medicare (or other benefit programs) billings of your business. It does not mean that you have been charged with a crime. Facing an investigation does not mean you will face charges, and your priority during the OIG’s investigation should be to prevent the government from bringing charges against you. We have helped numerous providers close their investigations without being charged (but we note that every case is different and prior results do not guarantee the same result in your case).
Additionally, it is important to note that OIG investigations can be either civil or criminal. When you engage Oberheiden, P.C. to represent you, one of our first steps will be to determine the nature of the OIG’s inquiry. If the OIG is investigating your business or practice for possible civil violations, we want to make sure that the investigation remains civil in nature.
Do I Need to Respond to the OIG’s Subpoena?
Yes. One way or another, you need to respond to your OIG subpoena. Whether you have grounds to challenge the subpoena (either in whole or in part) or you need to prepare a substantive response. Your response must submitted by a deadline in order to avoid further consequences including enforcement by the Department of Justice (DOJ).
When we represent clients who have received OIG subpoenas, our health care fraud defense lawyers seek to work with the OIG’s attorneys and investigators to limit the amount of information they demand. OIG subpoenas will commonly request an extraordinary amount of records including corporate documents, financial statements, billing records, marketing materials, legal opinions, and emails. We seek to identify and narrow the scope of the OIG’s investigation in order to reduce our clients’ disclosure obligations.
Before submitting records in response to an OIG subpoena, it is critical to carefully review the records to ensure that you are disclosing no more information than is absolutely necessary. Communications must also be reviewed and redacted as necessary to protect the attorney-client privilege. Finally, the records should be reviewed to ensure compliance with the requirements of the subpoena as well.
What Happens if I (or My Employees) Withhold Certain Information, Either Intentionally or Inadvertently?
It is not always easy to ascertain whether a record (i) is responsive to an OIG subpoena, and (ii) if it is responsive if it is legally required to be disclosed. That said, providers must go to great lengths to comply with their subpoenas, and they must avoid mistakes that could lead to a further inquiry or the potential for additional charges. If you learn that information was withheld from the OIG either intentionally or inadvertently you should proactively address the issue as soon as possible.
What Can the OIG Do if it Finds Evidence of Billing Violations or Fraud?
If the OIG finds evidence of fraud in the records you submit in response to a subpoena, it can continue to investigate your business or practice. This can continue until the OIG has sufficient evidence to pursue civil remedies or criminal penalties under the False Claims Act, the Anti-Kickback Statute, the Stark Law, or any other applicable health care fraud law.
What are the Consequences of Being Found Civilly Liable or Criminally Convicted for Health Care Fraud?
If the OIG decides to pursue charges, the consequences of a finding of civil responsibility or criminal culpability can be substantial. The specific penalties will vary depending on the scope of the OIG’s allegations and the specific federal law (or laws) involved. But generally speaking, in civil cases providers can face significant financial exposure, and a criminal conviction can result in fines, incarceration, or both. Civil monetary penalties (CMPs) can include fines, treble (triple) damages, recoupments, and exclusion from federal health care benefit programs. A criminal sentence can include hundreds of thousands of dollars in fines, and potential sentences of decades behind bars.
What are Other Potential Consequences of Facing an OIG Investigation?
In addition to civil and criminal penalties imposed directly by the government, health care providers who are targeted in OIG investigations can possibly face a variety of other consequences as well. For example, certain providers (such as physicians and pharmacists) may face loss of their professional licenses, and providers in various sectors may need to disclose their investigations to boards or regulators. An OIG investigation may also expose the need for a substantial update to the internal compliance policies and procedures of your business.
What are Some Potential Defenses to OIG Subpoenas and Health Care Fraud Charges?
Just as the allegations and charges stemming from OIG investigations can vary greatly from one case to the next, so can the defenses that are available. Generally speaking, however, in order to prove health care fraud, the government must carry its affirmative burden to prove all elements of the specific offense alleged. If the OIG’s evidence is lacking in any respect, this will provide grounds to dispute the charges. You can then seek to have your case resolved without charges, or prior to trial.
In addition, many of the federal health care laws include safe harbor provisions that shield providers from liability. These safe harbor provisions are complex, not well known, and not well understood. Furthermore, you may need to affirmatively demonstrate that you qualify for these safe harbor protections. Depending on the facts and circumstances involved, providers will often have a variety of other statutory and Constitutional defenses available as well.
About Oberheiden, P.C.
Our Team of Health Care Fraud Defense Attorneys and Former Prosecutors
Oberheiden, P.C., is a federal law health care fraud defense law firm led by experienced federal law defense attorney Dr. Nick Oberheiden. Our team includes several former prosecutors who have significant experience on both sides of OIG subpoenas. We have attorneys well versed in federal health care fraud investigations, as well as experienced litigators who have handled thousands of cases at the federal level.
Learn more about the health care fraud defense team at Oberheiden, P.C..
Our Results in Federal Health Care Fraud Investigations
As a function of our significant experience, our goal is to secure favorable results for our clients in OIG investigations. We have resolved numerous investigations with no civil or criminal charges, and none of our clients have been forced to close their practice, business, or health care facility as a result of their investigation. While of course every case is different and prior results cannot serve as a guarantee of a similar result in your case, Read about some of our recent success stories.
Additional Resources for Health Care Providers Facing OIG Investigations
For more information about responding to an OIG subpoena and how you can help protect your interests during an OIG investigation, we encourage you to read:
- What You Should Do When You are Under Investigation by the OIG/HHS
- What You Should Do When You are Under False Claims Act Investigation
- How to Choose the Best Attorney for Your Case
Schedule a Free Consultation with Our Skilled Health Care Fraud Defense Team
To schedule a free consultation with the health care fraud defense team at Oberheiden, P.C., please call (888) 452-2503 or contact us online. Our firm represents health care providers in OIG and federal health care law investigations across the country.