By: Jo Ann Halberstadter, Esq. 

The Department of Health and Human Services, Office of Inspector General (OIG) has broad authority to request access to examine records, information, and documents relating to the programs and operations within its jurisdiction.  The request can come in the form of a Request for Information, Administrative Subpoena, Demand for Immediate Access, HIPAA Administrative Subpoena, or a Grand Jury Subpoena.  Regardless of which type of request is used, it is important to always keep in mind the following:

1. Always seek legal counsel immediately upon learning of  such request;
2.  Denying or ignoring a request can result in suspension or exclusion from government health programs;
3. It is important to limit your response or production only to those materials being requested and to consider potential patient confidentiality and privacy issues;
4. DO NOT destroy or alter ANY documents or materials in anticipation or as a result of the request;
5. And finally, document, document, document!  This includes documenting all efforts to locate and produce the materials or records requested and all efforts taken to protect against destruction or modification of information.  It also includes documenting the name of every person and government agent who contacts you or appears at your facility.

The OIG has authority to request information without issuance of a subpoena.  As a general rule, this request comes in the form of a letter requesting records and documents.  The letter can also include a request to interview certain employees.  It is important to know that an OIG must limit a Request for Information to information and materials relating to the Medicare and Medicaid programs.  Also, it is important to know that the OIG cannot compel an employee interview.  The employee has the right to refuse or request the presence of an attorney without negative repercussions.  However, a facility is not permitted to interfere with an employee's decision to be interviewed or answer questions.

The OIG has the authority to subpoena all information, documents, reports, answers, records, accounts, papers and other data and documentary evidence related to an Inspector General's investigation.  However, the OIG is not authorized to subpoena a witness for deposition or to compel testimony.  Therefore, if under investigation, it is often prudent to let your employees know that there is an ongoing investigation and that they should be prepared for unannounced interviews by government agents who may appear at their homes or at other non-work related locations and times.  All interviews with employees are completely voluntary.  An employee has the right to request that the interview take place at a different time/location and to have an attorney present at the time of the interview.  It is intimidating to be approached by a government agent.  Advanced notice and a discussion of their rights with your employees will help prepare them in the event of an unannounced visit/interview.

The OIG and State Medicaid Fraud Control Units (MFCU) can request "immediate access" to a healthcare provider's office.  Such request for immediate access must be in writing, detailing the scope of the request, and signed by an OIG or state MFCU representative.   "Immediate Access" usually means within 24 hours of receipt of notice/letter.  When faced with a Request for Immediate Access, it is important to gather the documents outlined in the request and have them all in one place for the agent to inspect so as to limit the agent's exposure to other documents or evidence.  In the event of an unannounced agent visit, it is important to request: 1) the presence of your attorney; 2) a business card identifying each person present and his/her position and contact information; 3) all questions and requests be put into writing for review by counsel; and 4) that copies are made of any document produced by the facility for the agent.

Responding to an OIG request for information or subpoena is a time consuming and difficult task.  It requires identifying all information requested and ensuring that procedures are put in place to prevent destruction/modification of the information as well as for limiting production of information to the scope of the inquiry.  It also requires a documentation system of all efforts taken by a facility to identify, protect, produce and otherwise comply with the subpoena or request.  Such documentation is often requested by the OIG and also demonstrates a good faith effort to comply with the investigation. 

If you have any questions regarding this article, please contact    Jo Ann Halberstadter, Esq., at jhalberstadter@barmak.com or call (609) 454-5351.