When in Doubt, Ask

Sometimes you want to be contacted by the US Department of Health and Human Services (HHS) Office of Inspector General (OIG).  

I realize that sounds totally counterintuitive. I mean, who wants to have an agent on their doorstep? But the truth is, if the OIG wants to talk to you, you want them to reach you. I recently had a hospital client receive a request for several medical records. The request came from a purported OIG agent, but it was on a form I had never seen before. 

It wasn’t a Civil Investigative Demand, or a subpoena. It was a request. I had also never heard of the agent.   My client was suspicious of the request. The list of attached names was unusual.  Having a list of random patients in Minnesota without having an Anderson, Carlson, Johnson or Peterson among them, is highly unusual. One of the hospital’s questions to me was whether they were required to comply with this request.  

Assuming the request was from an actual OIG agent, and the patients were all government recipients, on Medicare or Medicaid, I believe that the answer is yes. Under the Immediate Access provision, the OIG has pretty strong argument that it is entitled to review information relevant to the bill, including medical records. I am pretty sure it can get that info by asking; a subpoena isn’t required.    

On past broadcasts, we have discussed both the importance and the difficulty of validating the authenticity of a communication from the OIG. You cannot use the director of HHS employees or just Google the person. There is no online option for authentication. 

Basically, you must reach out to someone at the OIG you know is legitimate and ask them. So that is what I did, and the call verified that the agent was authentic.

I gave the agent a call, introduced myself, and asked if they could describe the investigation. While the agent was willing to confirm the hospital was not the target of the inquiry, that was essentially the only information she would offer. 

I took the opportunity to ask who the other agents in that local office were, lowering the likelihood I would have to do a similar validation in the future. While we were discussing that, the agent said something very important: she noted one of her colleagues had submitted a request to the same hospital and had not heard anything.  

She then did something classy: she asked who the hospital would like to use as a contact for further inquiries. What a great question. I am quite grateful to the agent for asking, and it highlights an important point.  

It may be worth reaching out to your local OIG agent and identifying the contact you would like for communications. Whether you choose to use external counsel like me, an internal lawyer, or someone in your compliance department, having a centralized contact point lowers the likelihood you will accidently blow off an important government communication. 

It also shows the agents that you take them seriously and lowers the odds you will have an always risk unexpected in-person visit.