Health care providers are tasked with not only managing a medical practice, but also navigating a regulatory maze filled with dense and technical rules, procedures, and compliant practices. Ensuring regulatory compliance in the health care industry is no easy feat, and it requires proactive planning, active maintenance, and decisive action when issues arise. Sometimes, however, those issues can lead to audits, subpoenas, investigations, and enforcement actions.
The Office of Inspector General (OIG) is a subsidiary of the U.S. Department of Health & Human Services. As a federal agency, the OIG’s primary responsibility is protecting the federal government from waste, fraud, and abuse within Medicare and Medicaid, and other HHS programs. Most importantly, the OIG has the power to conduct investigations, take civil and / or criminal legal action, and create significant concerns and potential consequences for health care providers.
How Do OIG Enforcement Actions Begin?
In their earliest stages, OIG enforcement actions can be set in motion in a few common ways, including:
- OIG analysts identify unusual practices or patterns and flag them for further review. Auditors are especially sensitive to red flags such as billing for services not provided, double billing, upcoming, and other potentially fraudulent actions.
- A whistleblower steps forward to file a formal report and initiate a qui-tam claim.
- Patients report providers or file formal complaints.
OIG Information Requests & Investigations
When initiating more formal steps to investigate health care providers for possible violations of the False Claims Act, the Anti-Kickback Statute, or the Stark Law, the OIG will generally request more information from providers. These requests may involve:
- OIG subpoenas – OIG subpoenas are formal legal requests for health care providers to provide information to investigators. They usually ask for things like billing records, financial documents, marketing materials, and e-mail communications. Subpoenas are a significant first step in fraud investigations, and they can have potential civil or criminal implications. Providers who receive subpoenas should immediately seek legal counsel to help them structure an approach for responding to requests, limiting the scope of requests to ease burdens on providers, evaluating the overall direction of investigations, and working with investigators to negotiate and seek resolutions.
- Requests to “chat” – In some cases, the OIG may contact health care providers and ask to speak with them. Often, investigators tend to present these talks as informal “chats” in which the providers they wish to speak with aren’t the target of an investigation. Providers shouldn’t be misled into thinking these “chats” can’t pose risks, and should seek legal counsel.
- Unannounced visits – In some very severe cases, especially when providers ignore initial requests for information or subpoenas, the OIG may come knocking on their door to collect files and materials for their investigations. Though it is an extreme and not common action, it can and does happen. Providers should make copies of their documents, and immediately consult experienced attorneys.
In any situation involving the OIG and any requests for information they make, health care providers need to understand the seriousness of these initial steps and know: they should not be ignored, and they demand legal immediate legal counsel. The same applies to any Civil Investigative Demand (CID) issued by the Attorney General, or designee, in relation to False Claims violations.
Failing to comply with or address the matter head-on in the early stages of an investigation can severely limit opportunities for pursuing a favorable path for resolution, and potentially prove devastating in terms of final enforcement actions taken. Our team helps clients respond to CIDs, OIG subpoenas, and other high stakes matters that create exposure to health care fraud investigations or enforcement actions.
Enforcement Actions Against Providers
The OIG’s investigatory work can lead to civil and / or criminal enforcement actions. Amid today’s heightened focus on waste, fraud, and abuse, investigations are often conducted as parallel proceedings, meaning information obtained by investigators can be shared for the purposes of pursuing both civil and criminal action. Our goal as health care defense attorneys is to gauge the nature investigations, negotiate their direction and resolution when possible, and reduce risks for criminal action.
Examples of enforcement actions resulting from the OIG’s work can include:
- Civil monetary penalties (CMPs)
- Individual or entity exclusion
- Recoupment or restitution
- Assessment of risks for future fraud, which can result in additional oversite or the obligations to continue participation in federal health care programs
- Corporate Integrity Agreements (CIAs) and Integrity Agreements (IAs) reached through settlements that may lead to exclusion when breach
- Civil judgments or liens on property
- Criminal prosecution, potential incarceration in federal prison
Hendershot, Cannon & Hisey, P.C.: Texas Health Care Fraud Defense Lawyers
The seriousness of OIG information requests, investigations, and enforcement actions cannot be understated. These are complex and comprehensive proceedings that can have disastrous results on providers, including both entities and individuals. For these reasons, seeking experienced legal counsel is essential after hearing from the OIG about potential waste, fraud, or abuse inquiries.
At Hendershot, Cannon & Hisey, P.C., our Houston-based health care and medical law team have experience representing health care providers throughout Texas and beyond in matters involving health care fraud investigations and the OIG. Our approach is based on the immediacy and diligence these cases demand, as well as the step-by-step guidance, negotiation, and pursuit of resolution our clients need.
To discuss a potential case with a Texas health care attorney, call (713) 909-7323 or contact us online.