Medical Records and the Law

Special Disclosure Concerns 325created. From a practical point of view, only a paper or electronic copyof an electronic record can be provided.Fraud and Abuse InvestigationsAggressive enforcement of healthcare fraud and abuse prohibitions bythe Department of Health and Human Services (DHHS) through itsOffice of Inspector General (OIG) have expanded the likelihood thathealthcare facilities will one day confront this type of investigation. It isnot uncommon for a healthcare facility to learn that it is the object ofan OIG investigation when federal agents arrive at its place of business,brandishing search and seizure warrants and taking possession of a significantportion of the facility’s internal documentation, including allactive and inactive patient files. It is important for health informationprofessionals to understand the nature and scope of this type of governmentinvestigation, given the implications such an investigation canhave for medical records integrity and confidentiality. 189Every federal agency has an inspector general who is responsible forferreting out waste, fraud, and abuse in that agency’s programs. Althoughthe inspector general’s offices in several other agencies are involvedin healthcare fraud and abuse investigations, the DHHS OIGis the most significant player in this area because it oversees the largestfederal government insurance programs. To exercise its authority, theDHHS OIG has the right to subpoena documents with respect toboth civil and criminal investigations. 190 The OIG subpoena representsone of the primary methods used by investigators and prosecutors toobtain information in healthcare fraud and abuse cases. These subpoenasmay be used in OIG audits, evaluations, or investigations, and maybe served on parties that have no immediate connection with the entityunder investigation. 191In addition to its subpoena authority, the OIG has “immediate accessauthority,” which derives from its right to impose a permissive exclusionfrom the Medicare/Medicaid program against an individual or189Note that fraud investigations (and search and seizure of patient records) may also be initiatedby state government officials who are acting pursuant to state law and have validsearch warrants. See, e.g., Brillantes v. Superior Court of Los Angeles County, 58 Cal. Rptr.2d 770 (Ct. App. 1996) (patient records seized as part of a Medi-Cal fraud investigation).190See5 U.S.C. Appx. § 6(a)(4).191See United States v. Art-Metal U.S.A., 484 F. Supp. 884 (D.N.J. 1980).