What You Should Do in an OIG Investigation

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• What Kinds of Fraud Is the OIG Looking For?
• What Are the Potential Outcomes for an OIG Investigation?

Health care fraud is a major problem for Medicare and Medicaid, the two major government health insurance programs. The Department of Health and Human Services’ Office of the Inspector General (OIG) is charged with identifying and investigating health care fraud and abuse. If you are a health care provider—or you work for one—you may find yourself the target of an OIG investigation. When that happens, you should not panic. But you also need to take the matter seriously. If the OIG contacts you, that is a strong signal that you or your employer are under active investigation. Do not assume that you can clear things up by “telling your side of the story.” In fact, the best thing you can say in response to an initial OIG inquiry is contact a qualified health care attorney who specializes in Medicare and Medicaid fraud cases. “With any government investigative process, you certainly want to pick up the phone and call counsel—be it a health care regulatory attorney or a white collar lawyer,” says Monica Wallace, who would fall in the former category but often partners with white collar colleagues on such cases at McDermott Will & Emery in Chicago. “Because OIG can sometimes involve [the U.S. Department of Justice] and, before you know it, you could be working with the FBI.”

What Kinds of Fraud Is the OIG Looking For?

The OIG accepts complaints from just about anyone who makes allegations of fraud. This can include the OIG’s own auditors and analysts, as well as employees who act as “whistleblowers,” or even a patient complaining about their bill. “Is this a run-of-the-mill audit review? Is it something more targeted? Is it maybe a whistleblower complaint? Sometimes it’s not clear what the investigation is,” Wallace says, “which is a reason to reach out to counsel to see if they’re in a position to gain more information for you.” The most common types of fraud the OIG office investigates include:

• Using the wrong billing codes to obtain higher reimbursements;
• Double billing the government and a private insurer twice for the same procedure;
• Billing for office visits where the patient never showed up;
• Seeking reimbursement for services the provider knows is medically unnecessary;
• Falsifying records to make it look like patients received services they actually did not; and
• Failing to timely return any overpayment to Medicare or Medicaid.

What Are the Potential Outcomes for an OIG Investigation?

Health care fraud carries potential civil and criminal penalties through federal agencies. Whenever the government conducts a criminal investigation, it must notify you of your constitutional rights against self-incrimination and to speak with an attorney. These same rights apply in a civil, non-criminal investigation, except the government does not necessarily have to advise you of your rights before a criminal prosecution. Anything you voluntarily tell the OIG may be used as evidence against you in a subsequent civil or criminal proceeding and investigative reports. This is why it is critical never to speak to anyone from the government without an attorney present. Indeed, if the OIG pressures you to talk before hiring an attorney, any statements you make can be ruled inadmissible in a criminal trial. “You don’t want to do or say the wrong thing. You want to follow their requests and not miss deadlines,” Wallace says. “If you get a subpoena, those can be serious things and hard to comply with. It can be a long road and be years in the making. The value of counsel is they can walk you through that process.” If you are a licensed professional, such as a physician or nurse, you can face the suspension or loss of your license, as well as exclusion from the Medicare and Medicaid programs. The government may also file a civil lawsuit seeking to recuperate any money that you allegedly obtained through fraudulent means. Once again, an experienced health care fraud attorney can advise you with respect to your potential legal liability and your options for contesting any formal charges. For more information on this area of law, see our overview of health care law.