Thinning of Resources

May 12, 2023

Resource allocation is always a challenge in anything in life.  If you have family obligations, you understand that you can’t be in two places at the same time.  So too this is the case with an SIU or the OIG/UA Attorney’s Office. 

There are only so many OIG agents around the country.  In fact, if you ever see what the total number of agents are, you will be slightly misled.  That total number is inclusive of all agents, to include management, headquarters staff and administrative agents (training group, for example).  A such, the actual number of agents with “boots on the ground” is less, creating an inherent resource issue. 

We are beginning to see this stretching of resources, which is clearly in part due to the absolute increase in cases stemming from COVID-19, in one particular area: Qui Tam filings.  While filing continue to increase, we here at Advize are seeing a fair number of what we would consider to be quality cases, being declined by the US Attorney’s Offices around the country.  In one OIG office, there were over 70 Qui Tams being investigated.  That is a huge number of Qui Tams.  These cases take a lot of time, resources and brain power to investigate and resolve.  The fortunate part is that a declined Qui Tam can still be pursued by the Relator and their counsel separately from the Department of Justice (DOJ).  The Relator is entitled to a larger percentage of the recovered monies as a result of the DOJ declining to intervene in the case, a percentage that may well be worth it for DOJ to still reap the end result benefits, even at a slightly higher percentage to be paid to the Relator.

We are assisting Relator attorneys on several Qui Tams that were declined by the DOJ, and the facts are compelling in these cases.  While it would be hoped that the DOJ would accept every Qui Tam, that is just not possible.  Resource allocation is an important metric in workloads and workflows.  Turning this back to the commercial SIU discussion that we have been having for the past several weeks on our OIG Roundtable Podcast, ensuring that SIU investigators are not so overwhelmed that nothing gets accomplished is a key component to the success of the SIU.  So too at the OIG and the DOJ.  If there is such an overwhelming amount of work, nothing would get done. 

At the OIG there was a colloquial saying that agents should not work “dogs,” meaning that a case that really does not have the merits for continued effort, should be closed.  The ability of a Qui Tam to be moved along in the legal process when declined by the DOJ is a great alternative that allows the investigation to continue, the potential recoveries back to the Medicare and Medicaid programs to exist and works to remove some of the overwhelming volume of work that exists in the healthcare FWA space. 

by Eric Rubenstein

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