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Healthcare Defense When Responding to OIG subpoena

July 2, 2020

A healthcare provider may be investigated for fraud. Using a formal court summons such a subpoena, they will receive notice from the federal government that they are the subject of an investigation. These subpoenas will be from the Office of Inspector General (OIG) and the Department of Health and Human Services. The federal government is dedicated to eliminating abuse, fraud, and waste in the country’s healthcare system. It has given the OIG broad authority to issue subpoenas for Medicaid and Medicare fraud as well as matters associated with all federal healthcare programs, and more.

OIG Subpoena
They are usually a request to provide documents associated with email communications between upper-level company officers, a company’s business structure, billing records, marketing materials, financial records, and more. Federal prosecutors at the Department of Justice will enforce the OIG subpoenas. Should a company not respond to an OIG subpoena, they could be held in contempt of court as well as be the subject of a criminal investigation. OIG subpoenas are administrative. It won’t be clear from the OIG subpoena if the investigation being conducted is for criminal or civil violations.

Reason For An OIG Subpoena
There are usually two events that will trigger an OIG subpoena.

*Insider Reporting – This is when a business partner, current or former employee has contacted the federal government and provided them with sufficient facts and information the government believes is credible. They will use this information as the basis to initiate an investigation. It is common for this to be done after they file a qui tam against the business. This is known as a whistleblower lawsuit.

*Federal Agent Investigation – This is when an OIG subpoena is issued based on investigations performed by federal agents. It could involve fraud detected from an audit, questionable billing patterns. This may also include billing for services not performed, upcoding, improper business arrangements, and more.

Responding To An OIG Subpoena
One of the first things that should be done is to immediately hire experienced legal counsel. These subpoenas come with serious implications. They may be very broad when it comes to the information that is requested. These types of subpoenas come with many types of procedural rules. Legal counsel will know how to create the best possible response strategy. It is important to properly handle all communications with authorities. This will establish credibility. Cooperating with the government will relax some of the significant burdens that come with the subpoena.

Information To Report
The information provided to the OIG should be enough for it to evaluate or act on. Certain types of information are usually requested.

*Telephone numbers, names, office locations as well as addresses of others who could provide important information concerning the alleged wrongdoing

*An accurate but brief statement concerning the facts used as evidence of wrongdoing

*Important dates of when the alleged wrongdoing could have occurred or is expected to happen

*The reason this information may have been provided

*Any important documents that will clarify the alleged wrongdoing

Investigative Activities
When conducting an investigation, there will be several different activities that could take place. It could involve examination of documents such as memoranda, files, vouchers, and contracts. Information may also be gathered by speaking with technical experts, witnesses as well as the subjects of the investigation. These interviews may be officially documented. Depositions given under oath and transcribed by a court reporter, as well as affidavits sworn under oath, may be part of the investigation.

Investigative Report
One all required information is obtained, an investigative report is created. Should the report show evidence of criminal behavior, the report could generate a referral. This will be presented to the Department of Justice (DOJ) or the appropriate law enforcement agency. This is where it will be decided to pursue prosecution in federal court or a more appropriate court. Should the investigative report show administrative offenses involving abuse, fraud, or waste, it will be forwarded to an FCC manager for further action.

Defending Against OIG Subpoena
There are often five goals when it comes to defending against an OIG subpoena.

*Negotiate a Fair result
*Eliminate any chance of a criminal investigation
*Meeting the needs of the request using effective channels of communications
*Make certain the investigation remains confidential
*Protect a client’s business as well as good name

An experienced attorney will know how to best handle an OIG subpoena. Strategies associated with handling the OIG subpoena will be adapted to address individual circumstances. All elements of the government’s investigation will be part of ongoing negotiations. Legal professionals will know how to get the matter resolved in the best way possible. Any agreement reached with the federal government will cover investigations by all other federal authorities.



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