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Defending Toxicology Labs In OIG-Investigations: Choosing The Right Lawyer

Categories: Government Investigations

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Few things in life are scarier than going through a federal investigation. When the investigation is initiated by a subpoena issued by the Department of Health and Human Services, the Office of Inspector General, or the Department of Justice, the idea of being associated with healthcare fraud should prompt a deliberate and careful search for effective defense strategies. That search should begin with choosing the right attorney.

What Makes OIG Investigations Dangerous?

Many civil and criminal healthcare prosecutions begin with the issuance of a subpoena from the Department of Health and Human Services and the Office of Inspector General. The Office of Inspector General is a branch of the federal government that is tasked to investigate healthcare fraud. Healthcare fraud can be prosecuted civilly with a goal to recoup overpayments; but healthcare fraud can also be prosecuted as a criminal felony pursuant to 18 U.S.C. Sect. 1347. In both cases, it is important to understand that the government is not required to prove that the accused acted intentionally (i.e. with specific intent). It is sufficient under federal law to show that the responsible individuals “should-have-known” that their operations or billing practices deviated from the law.

This low burden of proof is especially concerning when considering that the subpoena itself does not say whether the investigation is civil or criminal in nature. Because the defense strategy changes dramatically if purpose of the subpoena is to prepare a criminal investigation, OIG subpoenas are not an area of law to experiment with, but one that should be left to attorneys that have handled OIG investigations before and that have built a track record of successful outcomes for their clients.

Features of the “Right” Attorney

Clients seeking representation against OIG subpoenas should first and foremost make sure that their attorney of choice knows how to avoid criminal charges. Given the dual nature of OIG subpoenas, any mistake in choosing the right approach can have devastating consequences for the client. Potential clients should inquire about the specific experience of the attorney in the healthcare industry and should demand a disclosure of the attorney’s record from past representations of similar types.

As seen, OIG subpoenas are dangerous because they don’t reveal whether or not the investigation is civil or criminal in nature. This uncertainty greatly impacts a lawyer’s strategy. For example, OIG subpoenas typically ask for corporate documents, billing records, and email communications between the owners of the subpoenaed entity. What if there are some strains of communication that discuss a potential billing problem, but the owners nonetheless decide in writing to continue business as usual? What if there are bank records that show possibly illegal transactions? What if among the requested documents are foul marketing agreements? Producing any of these records could mean that the business owners incriminate themselves. An attorney with extensive experience in these types of situations will be able to identity the problem and then assess whether or not these records will actually be produced or held back. A lack of risk awareness can quickly turn a subpoena response into a criminal investigation.

When your business is on the line, the question of which attorney to choose for your representation should prompt you to think: quality, experience, and knowledge. Before you hire any attorney, you should talk to several candidates and inquire about that attorney’s experience and success rate with OIG subpoenas in your particular industry. For example, a criminal defense attorney that routinely wins rape and assault cases may be the greatest criminal defense attorney, but he may not have the any track record in healthcare defense matters. Clearly, you need to be comfortable with your attorney and it is paramount that your representation does not turn into an experiment. Ask for the attorney’s track record. Ask how many OIG investigations, how many civil, how many criminal healthcare investigations the attorney has handled so far; how many of those OIG representations resulted in no civil and no criminal liability outcomes?

About Oberheiden Law

Oberheiden & McMurrey, LLP has successfully represented physicians, physician syndications, business executives, and healthcare entities of all kinds against investigations by the Department of Health and Human Services, the Office of Inspector General, the FBI, the DEA, the FDA, the Department of Defense, the Department of Justice, the Department of Labor, and others. A great deal of those representations dealt with compliance issues in the context of toxicology laboratories.

Recent OIG Representations:

  • OIG Investigation against Laboratory (Stark Law)
    Result: No civil or criminal liability, case dismissed.
  • OIG Investigation against Laboratory (False Claims Act)
    Result: No civil or criminal liability, case dismissed.
  • OIG Investigation against Laboratory (Stark Law)
    Result: No civil or criminal liability, case dismissed.
  • OIG Investigation against Laboratory (Tricare Fraud)
    Result: No civil or criminal liability, case dismissed.
  • OIG Investigation against Laboratory (Medicare Fraud)
    Result: No civil or criminal liability, case dismissed.
  • OIG Investigation against Laboratory (Stark Law)
    Result: No civil or criminal liability, case dismissed.
  • OIG Investigation against Laboratory (Medicare Fraud)
    Result: No civil or criminal liability, case dismissed.
  • OIG Investigation against Laboratory (False Claims Act)
    Result: No civil or criminal liability, case dismissed.
  • OIG Investigation against Laboratory (False Claims Act)
    Result: No civil or criminal liability, case dismissed.
  • OIG Investigation against Laboratory (Stark Law)
    Result: No civil or criminal liability, case dismissed.
  • OIG Investigation against Laboratory (Medicare Fraud)
    Result: No civil or criminal liability, case dismissed.

Call Us Today

  • Dr. Nick Oberheiden (nick@federal-lawyer.com) has successfully represented numerous toxicology laboratories, executives, and healthcare businesses before the Department of Health and Human Services (DHS), the Office of Inspector General (OIG), the Department of Defense (DOD), the Department of Justice (DOJ), the Department of Labor (DOL), the FBI, the DEA, and the U.S. Postal Inspection Service (USPIS), among others.

If you are under investigation or if you are interested in setting up a healthcare compliance program for your healthcare business, you should give Nick a call today to discuss your options.

Oberheiden & McMurrey, LLP
Healthcare Law Defense
(800) 810-0259
(214) 469-9009
www.federal-lawyer.com

This information has been prepared for informational purposes only and does not constitute legal advice. This information may constitute attorney advertising in some jurisdictions. Reading of this information does not create an attorney-client relationship. Prior results do not guarantee similar future outcomes. Oberheiden & McMurrey, LLP is a Texas LLP with headquarters in Dallas. Mr. Oberheiden limits his practice to federal law.

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