OIG Subpoenas Explained
Health care providers under investigation for possible fraud may receive notice of the federal government’s investigation through formal court summons, including subpoenas from the Department of Health and Human Services and Office of Inspector General (OIG). With the government’s increasing focus on eradicating fraud, waste, and abuse in the federal health care system, the OIG has the authority to issue subpoenas not only for suspected Medicare and Medicaid fraud, but all matters involving federal health care programs, including TRICARE.
At Hendershot, Cannon & Hisey, P.C., our Houston-based lawyers have a reputation as industry leaders in health care law and defending clients across Texas and the U.S. against fraud investigations. Our goals in these matters focus on immediate counsel and intervention, as well as the cultivation of creative solutions to mitigate risks of criminal liability, keep investigations confidential, protect our clients’ reputations, and seek the most positive outcome possible.
To help you better understand OIG subpoenas, the serious consequences they pose, and the importance of working with experienced legal counsel when responding to and resolving investigations, our firm has compiled the following information.
OIG Subpoenas: Purpose & Scope
Why are Subpoenas Issued? OIG subpoenas are a formal step in health care fraud investigations, including those related to violations of the False Claims Act, the Anti-Kickback Statute, or the Stark Law. Generally, they are prompted by the following:
- Qui-tam claims, also known as whistleblower lawsuits, brought by someone with credible inside information regarding alleged fraud and violations. These individuals can include current or former employees; or
- Questionable billing patterns or possible fraud identified through audits or other federal investigations. Red flags may include upcoding, double-billing, billing for services not provided, improper business arrangements, among others.
Scope of OIG Subpoenas. OIG subpoenas make requests for information that aids federal authorities in their investigation. This can include requiring the production of documents related to billing records, financial materials, marketing information, and e-mail communications. Unlike Civil Investigative Demands (CID) issued in some False Claims Act investigations, OIG subpoenas do not generally demand interviews or interrogatory responses from providers.
Civil or Criminal? Information obtained through an OIG subpoena can be used as part of investigations into both civil and criminal liability. In recent years, the government has placed greater emphasis on parallel proceedings, which means documents collected via a subpoena can be shared between civil and criminal authorities, when appropriate. Because subpoenas are administrative in nature, it is not always clear if an underlying investigation is civil, criminal, or both. However, there is an increased likelihood for parallel proceedings when subpoenas are issued under the Health Insurance Portability and Accountability Act (HIPAA), as opposed to a grand jury. One of the primary goals when our firm becomes involved in an investigation is to not only assess its nature and direction, but also reduce exposure to criminal liability.
Responding to a Subpoena
Immediate Legal Counsel. Because subpoenas have profound implications, can be broad in terms of requested information, and are rife with procedural rules, immediate legal counsel is critical when formulating a response strategy. By handling communications with authorities and establishing your credibility and cooperation with the government, we look to ease some of the immediate burdens created by subpoenas. Involving attorneys experienced in health care fraud defense can also help with extrapolating information about the investigation, exploring available strategies and options, and opening lines of communication for good faith negotiations and resolution.
Producing Documents. Providing the government what it needs for its investigation is critical, as failing to respond may result in criminal contempt and additional consequences, in addition to harming your status in investigators’ eyes. Because such demands from the government can be broad and invasive, as well as costly and time-consuming to comply with, attorneys can assist providers when reaching compromises with the government to lessen the burdens created by subpoenas while still providing information relevant to the investigation.
Negotiation & Resolution. Negotiating a fair outcome is the objective in any health care fraud investigation, and especially so in those involving parallel proceedings. By tailoring strategies to the circumstances involved, and addressing all components of the investigation in negotiations, providers can take steps toward resolving all related matters, and ensuring any agreements bind other federal authorities. Negotiations may focus on avoiding criminal proceedings, reaching a fair settlement, and / or shielding providers from being excluded from government health care programs.
Speak with our Houston Health Care Lawyers About Your Case
Any health care provider who has received an OIG subpoena, or has been made aware of possible pending investigations, should be intent to speaking with proven attorneys immediately. Our legal team at Hendershot, Cannon & Hisey, P.C. prioritizes timely and appropriate responses to matters of health care fraud, and is readily available to discuss your case, rights, and options during a confidential consultation.
Call (713) 909-7323 to speak with a member of our team.