What Should I Do When HHS or OIG Agents Show Up at My Door to Interview Me?

Federal Defense Attorneys Experienced in HHS and OIG Investigations

It’s evening. You just got home from work, and you are getting ready to sit down for dinner with your family. But, unexpectedly, you hear a knock at the door, and when you answer it you see two federal agents holding badges from the U.S. Department of Health and Human Services’ Office of Inspector General (HHS OIG). They have questions for you. What should you do? 

The HHS OIG’s Role in Federal Law Enforcement

The Office of Inspector General is the law enforcement division of the U.S. Department of Health and Human Services. While the HHS OIG is responsible for fighting waste, fraud, and abuse affecting all federal healthcare programs, it primarily focuses its efforts on combatting Medicare and Medicaid fraud. As explained on the HHS OIG’s website:

“HHS OIG is the largest inspector general’s office in the Federal Government. . . . A majority of OIG’s resources goes toward the oversight of Medicare and Medicaid — programs that represent a significant part of the Federal budget and that affect this country’s most vulnerable citizens. [HHS OIG’s] government oversight extends to programs under other HHS institutions, including the Centers for Disease Control and Prevention, National Institutes of Health, and the Food and Drug Administration.”

In order to fight Medicare and Medicaid fraud, the HHS OIG targets healthcare providers and other entities that bill these programs for patient services, medical supplies, and durable medical equipment (DME). It targets all types of intentional and unintentional billing violations, as prohibited by the applicable program billing regulations, the False Claims Act, the Anti-Kickback Statute, the Stark Law, and various other sources of federal authority. Common allegations in HHS OIG investigations include: 

• Billing for services, supplies, or DME not actually provided (“phantom billing”)
• Billing for medically-unnecessary services, supplies, or DME 
• Supplying opioid medications to drug-dependent patients or without adequate evidence of medical necessity
• Submitting incorrect billing codes (including upcoding and unbundling of services, supplies, and DME)
• Double-billing Medicare, Medicaid, and/or a private healthcare insurance company
• Engaging in unlawful kickback or referral fee transactions
• Participating in a conspiracy to overbill Medicare or Medicaid 

When seeking to determine whether a provider has overbilled Medicare or Medicaid, the HHS OIG relies on providers’ Medicare and Medicaid billing data as well as information obtained through interviews and other investigative tactics. An investigation can arise out of an automated review of a provider’s billing data, an administrative audit, a “tip” (or whistleblower claim) from a patient or employee, or an investigation into another provider’s billing practices. In any case, once an investigation has been opened, the purpose of the investigation is to determine whether there is enough evidence for federal prosecutors to pursue civil or criminal charges. If the investigation produces sufficient evidence to establish probable cause to believe that a civil or criminal offense has been committed, then the HHS OIG will either pursue a case directly or work with the U.S. Department of Justice (DOJ) to seek an indictment in federal district court.

Good and Bad Examples of Responses to HHS OIG Requests for Interviews

Let’s say you are being targeted in a fairly standard case involving allegations under the federal Anti-Kickback Statute. The HHS OIG has been investigating a DME supplier, and in the course of its investigation your name has come up as one the supplier’s customers. In fact, the DME supplier’s financial records show that you have received rebates that appear to qualify as unlawful “remuneration” under the Anti-Kickback Statute. A review of your practice’s Medicare billing data indicates that you have ordered a higher volume of DME than other providers in your geographic area. 

At this point, this is the current status of the HHS OIG’s investigation:

• The HHS OIG knows that your practice has an ongoing financial relationship with the DME supplier.
• The HHS OIG is prepared to pursue charges against the DME supplier for Anti-Kickback Statute violations.
• The HHS OIG is close to pursuing charges against you as well. At this point, the primary questions are: (i) can you provide an explanation as to why the perceived “rebates” do not violate the Anti-Kickback Statute in your particular case; and, (ii) if not, can you show that you did not intentionally accept unlawful rebates (which would make your case criminal in nature)?

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Michael S. Koslow

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Ray Yuen

Former Supervisory Special Agent (FBI)

Interview Version 1: Bad Interview

HHS OIG Agent: Hello, I am Joe Smith from the HHS OIG. This is my colleague Jane Doe. Are you Dr. Jones?

You: Yes, how can I help you?

HHS OIG Agent: We were wondering if we could ask you some questions. It’s nothing formal, we just need your help as part of a routine inquiry. It’s not about you. 

You: I suppose. My family and I were just about to sit down for dinner. 

HHS OIG Agent: No problem, this will just take a couple of minutes.

You: Okay, come on in.

HHS OIG Agent: Are you familiar with ABC DME Company?

You: Well, sure. I buy equipment from them regularly as part of my practice. 

HHS OIG Agent: I see. How long has ABC DME Company been supplying your practice?

You: I don’t know exactly. Maybe four or five years.

HHS OIG Agent: And, why did you choose ABC DME Company? 

You: They approached me when I opened my practice and offered me a good deal. I didn’t need to look anywhere else.

HHS OIG Agent: Makes sense. What kind of deal?

You: Um, why is this important?

HHS OIG Agent: Oh, it’s not, really. We are just trying to understand why so many doctors choose ABC DME Company.

You: I see. Well, they offered me what seemed like a pretty steep discount. All they said was that if I bought from them, then they would take care of everything to make sure I paid below market price.

HHS OIG Agent: Huh. How could they do that?

You: Well, I don’t know, and I didn’t ask.

HHS OIG Agent: And, do you treat patients who are on Medicare or Medicaid? 

You: Yes, that is the majority of my practice. In fact, almost all of my patients who receive equipment from ABC DME Company are on Medicare or Medicaid.

HHS OIG Agent: That’s not unusual. But, didn’t you think it was unusual that you would get such a steep discount on DME, especially since you were just starting out at the time?

You: Well, maybe. But, I wasn’t going to ask questions. It made sense financially, and I needed to make sure my practice could stay afloat.

HHS OIG Agent: All good doctors do. Thank you for your time, sir. Enjoy your dinner with your family.

Interview Version 2: Good Interview

HHS OIG Agent: Hello, I am Joe Smith from the HHS OIG. This is my colleague Jane Doe. Are you Dr. Jones?

You: Yes, how can I help you?

HHS OIG Agent: We were wondering if we could ask you some questions. It’s nothing formal, we just need your help as part of a routine inquiry. It’s not about you. 

You: Actually, I would prefer to have my lawyer present.

HHS OIG Agent: Your lawyer? What’s his or her name?

You: I can’t remember off the top of my head. I would have to check my practice’s files.

HHS OIG Agent: You don’t need to go through the trouble to do that. We’ll just ask you a few questions and then be on our way.

You: No, please respect that I would like my lawyer to be present. If you give me your card, I will ask my lawyer to contact you tomorrow. Thank you for your understanding.

HHS OIG Agent: I don’t understand. It’s not like you have anything to hide, right?

You: Please respect that I would like my lawyer to be present.

HHS OIG Agent: Okay, here’s my card.

You: Thank you, have a nice day.

Why You Should Never Talk to an HHS OIG Agent Without Your Lawyer

From the perspective of protecting yourself against possible charges, the difference between Interview 1 and Interview 2 could not be any clearer. In Interview 1, you gave the agents reason to suspect that you intentionally violated the law – or at the very least did so with willful ignorance). In Interview 2, they left without any additional information to use against you.

In addition to the risk of voluntarily disclosing incriminating information, talking to HHS OIG agents presents the risks of providing misleading information as well. Under 18 U.S.C. § 1001, making any “false, fictitious, or fraudulent statement” to a federal agent is a crime that is punishable by a fine and up to five years in prison. Yet, there is nothing that prohibits HHS OIG agents from lying to you. They can tell you that nothing is wrong, that you have nothing to worry about, and that there is no reason for you to speak with an attorney. If you fall for their tactics and say something that puts your practice or your freedom in jeopardy, then the agents will be able to testify as to the substance of your conversation and use your own words against you in court.

Speak with a Federal Healthcare Fraud Defense Lawyer at Oberheiden, P.C.

If you have been contacted by agents from the HHS OIG, it is important that you speak with an attorney right away. Our healthcare fraud defense attorneys assist service providers and businesses under investigation for alleged Qui Tam Lawsuit, Stark Law, False Claims Act, or Anti-Kickback violations. To discuss your situation with one of the highly-experienced federal healthcare fraud defense lawyers at Oberheiden, P.C., call us at 888-680-1745 or tell us how to reach you online now.