Steps to Take If You Receive an OIG Subpoena from the U.S. Department of Health and Human Services

Attorney and Author HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The U.S. Department of Health and Human Services (HHS) issues investigative subpoenas through the Office of the Inspector General (OIG). This agency investigates allegations of fraud, waste, and abuse of Medicare, Medicaid, and other federally funded healthcare programs. These subpoenas are very broad, usually requiring the production of thousands of pages of documents. Click here to see a sample of a subpoena duces tecum issued by the OIG. 

Immediate Action to Take If You Receive an OIG or DHHS Subpoena.

Immediately review the subpoena in detail to see what it requests and from whom. A subpoena may be issued to or served on the wrong person or organization. If so, have your attorney contact the issuer and attempt to resolve the matter. Document everything in writing.

However, the most important thing you can do is to contact an experienced healthcare attorney. There is something going on that has led to an investigation so you need to try to get to the bottom of it. A review of the documents being subpoenaed will give you and your experienced healthcare attorney an idea of what type of case is being investigated by the OIG. Additionally, your attorney can contact and begin dealing with the OIG’s Office and the U.S. Attorney’s Office if it is involved.

Many Different Circumstances Can Lead to Investigation and Subpoena.

If someone has filed a False Claims Act (FCA) complaint or suit, also known as a whistleblower or qui tam suit, this may be why the OIG is investigating. A patient complaint can cause an investigation to be opened. A suspicion of violating the rules for Medicare and Medicaid participation, including the Conditions of Participation or the Conditions for Payment (Federal Regulations). For example, if you have committed violations of program requirements such that the government can seek Civil Monetary Penalties, this may give rise to such an investigation. If you are suspected of Medicare fraud, including upcoding or billing for medically unnecessary supplies or services, this may lead to such an investigation. The matter is serious, so you should retain experienced healthcare counsel.

Follow These Steps to Enable an Organized Response:

1. Immediately review the subpoena to ensure you know the expected delivery date of the requested documents and how they will be delivered.

2. Immediately retain the services of an experienced healthcare attorney to start dealing with the OIG or any other government office involved.

3. Immediately start assembling the documents requested by the subpoena so they may be reviewed by your attorney before they are reorganized, labeled, page numbered, and produced. This will take longer than you think.

4. Request an extension of time to respond, if needed, before the due date for the production of the documents. These are routinely given, especially for large document productions. Document the granting of the extension of time in writing.

5. Completely read the instructions given in the subpoena regarding how documents produced are to be organized, page-numbered, labeled, copied, and delivered. It is essential to produce them this way to the address requested.

6. If documents are archived, in storage, require the re-reinstallation of old software to reproduce, or otherwise will take a long time to produce, request a “rolling production.” This is an agreement to produce the documents as you obtain them.

7. In reviewing the documents and the subpoena, attempt to determine exactly what the OIG and agency may be investigating. This will afford you time to begin preparation for your defense.

8. Do not personally communicate with OIG special agents, other investigators, or attorneys working for the OIG or U.S. Attorney’s Office. Anything you say to them, orally or in writing, can be used against you in their case. Any incorrect or false information you provide, orally or in writing, can result in a felony charge under 18 U.S.C. Sect. 1001. Have your attorney do all communicating.

9. Remember, you do not have to produce any documents in your custody. Likewise, you do not have to create documents to produce.

10. Never alter, destroy, delete or create documents for which the subpoena is issued after you have received the subpoena. Consider all documents to be “frozen.” Also, immediately notify whoever is in charge of your document retention or document destruction program (if you have one) to ensure no further documents are destroyed or deleted.

11. If you do not have a document destruction program for obsolete documents in place as you read this blog, then you need to create one (subject to number 10 immediately above). Make sure it addresses e-mails, text messages, messages over social media (such as Instagram and Whats App), electronically stored documents, and any paper copies. Do not keep any documents for longer than you are required to keep them by law (including federal regulations).

12. Provide an explanation for any documents or categories of records that you should have but were destroyed by natural disasters, fires, etc. Include documentation (fire department, police report, insurance company appraisal, etc.) that shows this. Do not ever lie or exaggerate.

For additional information, click here to read one of the recent blogs on preparing for a healthcare audit request.

Contact Health Law Attorneys Experienced in Handling Medicaid and Medicare Audits.

The Health Law Firm’s attorneys routinely represent physicians, medical groups, clinics, pharmacies, durable medical equipment (DME) suppliers, home health agencies, nursing homes, and other healthcare providers in Medicaid and Medicare investigations, audits, and recovery actions.

To contact The Health Law Firm, call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or toll-free (888) 331-6620.

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“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

 

Centene Reaches $166 Million Settlement With Texas Over Its Medicaid Drug Pricing

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The nation’s largest Medicaid insurer, Centene, has agreed to pay $165.6 million to Texas to resolve claims that it overcharged the state’s Medicaid program for pharmacy services. The deal was signed on July 11, 2022, but wasn’t publicly announced until September 19, 2022. The agreement makes Texas the 12th state to settle pharmacy billing claims with St. Louis-based Centene. It’s also the health insurance giant’s biggest payout over its drug pricing practices.

The Allegations Across Many States.

The allegations focused on Centene’s pharmacy benefit manager business, claiming it overbilled the state’s Medicaid programs for prescription drugs and pharmacy services. Such benefit managers act as middlemen between drugmakers and health insurers and as intermediaries between health plans and pharmacies. Multiple states have pursued allegations against Centene’s pharmacy manager business, alleging that it overbilled their Medicaid programs for prescription drugs and pharmacy services.

So far, Centene has settled with Arkansas, Illinois, Kansas, Mississippi, New Hampshire, New Mexico, Ohio, Texas, and Washington for a total of $475 million, according to news releases and settlement documents. Three other states and their settlement amounts have not been identified by Centene or the states themselves. Exactly how the company may have overcharged states or failed to meet the terms of its contracts is not disclosed. Click here to read one of my prior blogs on Centene to learn more.

Click here to view the settlement in full.

Contact Health Law Attorneys Experienced with Medicare and Medicaid Fraud, False Claims Act Violations, and Whistleblower Lawsuits.

The attorneys of The Health Law Firm represent health professionals and providers in case audits by and payment disputes with Medicare, Medicaid, Tricare, health insurers and managed care organizations. They have experience in representing healthcare providers who are involved in audits by Centene and Sunshine State Health Plan. Even after an audit they can assist you in appealing the results of the audit and in disputing any overpayment demand made. Our attorneys routinely represent psychoanalysts, behavioral therapists, home health care companies, professional counselors, social workers, certified behavior analysts, physicians, pharmacies, pharmacists and other healthcare providers in defending investigations, audits, recovery actions and termination from the Medicare or Medicaid Programs.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Health Law Section. “Nation’s Largest Medicaid Insurer to Pay $166 Million to Texas in Drug Pricing Settlement.” American Bar Association. (September 30, 2022). Web.

Miller, Andy. “Centene to Pay $166 Million to Texas in Medicaid Drug Pricing Settlement.” Kaiser Health News. (September 20, 2022). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 Toll-Free: (888) 331-6620

Attorney Positions with The Health Law Firm. The Health Law Firm is always looking for qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: [email protected] or fax to: (407) 331-3030.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2022 The Health Law Firm. All rights reserved.

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