Don’t Be Surprised To Find an OIG Agent or Attorney as a Prosecutor
The HHS OIG issued its Semi-Annual Report to Congress for the first half of fiscal year (FY) 2017, which summarizes key accomplishments, significant problems, abuses, deficiencies, and investigative outcomes relating to the administration of HHS programs and operations that were disclosed during the reporting period. This report includes a section referred to as the “Special Assistant U.S. Attorney Program,” a program that is not widely known or understood. The DOJ frequently cross-designates OIG attorneys to assist in health care fraud prosecutions. Under this program, the OIG participates in a program in which OIG attorneys, some of whom are Special Agents, serve as Special Assistant U.S. Attorneys. The attorneys are detailed full-time to the DOJ for temporary assignments, including those related to the Health Care Fraud Strike Force. Some of the attorneys are called upon to prosecute matters on a case-by-case basis. In its Semi-Annual report, the OIG noted the continuation of this program and how these attorneys have successfully litigated important criminal cases relating to the fraudulent billing of medical equipment and supplies, infusion therapy, physical therapy, and other types of Medicare and Medicaid fraud.
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Tom Herrmann, JD, is a nationally recognized health care compliance consultant who served for a number of years in executive leadership at the Office of Counsel to the Inspector General (OCIG). He recalled that in the early days of criminal and civil enforcement of health care fraud cases, there was a shortage of attorneys in the DOJ who were experienced in health care fraud cases. The OIG lent some of their attorneys to add health care knowledge and expertise to the DOJ. In doing so, the OIG attorneys were cross-designated as Special Assistant U.S. Attorneys. This ad hoc program was later formalized in 2007 as an ongoing program. Under this arrangement, the Medicare and Medicaid expertise of the OIG is used as a supplement to prosecutors in specialized areas of health care. This practice has flourished over the years and has been beneficial to both the DOJ and OIG. In any areas of the country where the local U.S. Attorney’s offices may be weak on health care enforcement, the OIG is available to supplement and reinforce them. The DOJ is supplemented with health care experts as needed and the OIG attorneys are provided top-notch litigation training. Other attorneys prosecute matters on a case-by-case basis or are employed as Special Agents to the DOJ. This permits the DOJ to have program expertise added to their offices and provides experience to the OIG in managing criminal healthcare fraud investigations.
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