Facing an investigation by a federal Office of Inspector General (OIG) can be terrifying for an organization and its employees; however, carefully following a series of action steps can help generate the best outcome possible, two attorneys said.
These steps are “what you need to do and how you should react if the OIG requests documents from your organization, or wants to investigate some potential misconduct, [or] calls in your employees for witness interviews. All of these are scary things. They’re nerve-wracking things that cause great anxiety amongst organizations and agencies that are just trying to serve the public, serve their communities, and aren’t used to this type of interaction with an investigative authority,” attorney Mindy Pava—who serves as counsel to the litigation and investigations, federal grants, health care and education practice groups at Feldesman Tucker Leifer Fidell LLP—said in a webinar.[1]
Fellow attorney Rosie Griffin told webinar attendees there are around 75 OIGs in the federal government, all subordinate to the U.S. Department of Justice (DOJ). The general authorities that OIGs work under are the same, and “structurally, they’re not going to be too different from one another,” she said. OIGs investigate administrative, civil and criminal matters, she said.
Therefore, an investigation doesn’t necessarily indicate that OIG suspects criminal activity, Griffin said. Still, administrative actions can have broad consequences for federal grantees, she pointed out, “So, even within that realm, there are serious consequences, and you want to be handling this interaction correctly from the outset.” She said that the organization should determine whether the attorney handling the matter is from the civil or criminal division because “that’s going to give you an idea right from the start about how the OIG is looking at your matter.” OIG can also coordinate with assistant U.S. attorneys around the country, she said.
HHS’ OIG is the largest in the federal government, and in fiscal year 2022, investigative work led to $2.73 billion in expected recoveries and 710 criminal actions, Griffin said. OIG investigations led to 736 civil actions and excluded 2,332 individuals and entities from federal health care programs, she added.
Across all OIGs, in fiscal year 2021, OIGs handled more than 1.43 million hotline complaints, closed 17,789 investigations and had 1,058 successful civil actions, Griffin said.
“There is so much OIG activity that even if you think everything is going great, it’s something you should be planning and preparing for because you could wind up being contacted by the OIG whether there’s a ‘there’ there or not.”
Why Are Organizations Targeted?
OIG investigations arise in many different ways, Griffin said. They include:
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Whistleblower
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Audit or site visit discrepancy
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Major new grant or funding source
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Ongoing investigations from another agency
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News reports and other publicly available information
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Government initiatives such as strike forces
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Self-disclosure
Self-disclosure almost always sets off an investigation. Griffin said, “It’s a very, very rare place where there’s a self-disclosure, and it just sort of takes care of itself—it’s obvious enough what happened, and the extent of damage is that the government’s just going to accept your word for it. No, they’re going to do their own investigation.”
Investigators are required by law to protect confidentiality, identify themselves in interviews and tell you their purpose, Griffin said. However, they have considerable flexibility in how much they need to tell someone they’re interviewing, she said.
To try and understand what OIG might be looking for, Griffin said there are various questions to ask, including:
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Is this an investigation, inquiry or examination? Is it administrative, civil or criminal? What is the purpose?
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Is OIG coordinating with DOJ? If so, is it with a U.S. attorney’s office or with the main department? Is there an assigned assistant U.S. attorney? Is that individual civil, criminal or cross-designated?