Health Law Blog - Healthcare Legal Issues

New 2013 Self Disclosure Protocols

An OIG representative spoke about the new revised self disclosure protocols at a recent HCCA seminar that I attended.  The OIG felt it was appropriate to be more transparent regarding the process for self disclosure.  A few points were highlighted in this session:

  1. The OIG held its own feet to the fire by acknowledging the 1.5 damage multiplier when the self disclosure protocol is used.  They will need to justify if they are going to ask for more.
  2. Self disclosure is not admission of liability.  However, you will be required to make a settlement and payment if you make a self disclosure.
  3. Self disclosure is not to be used to get an interpretation of whether your activity was wrongful or whether a law was violated.
  4. Decision not to self disclose leaves you open to potential whistleblower complaints.  False Claims Act potential remains for the ten-year False Claims Act statute of limitation.
  5. Repayment can go to the fiscal intermediary if there is no wrongdoing but there is still an overpayment.
  6. Self disclosure requires disclosure of how your investigation was conducted.  If the investigation was conducted under privilege, you will need to disclose privileged information on investigation under privilege.
  7. The only party that can give you a False Claims Act release is the Department of Justice (“DOJ”).  The DOJ does not have a formal process for obtaining a signoff from the DOJ.  There is an option to go to the DOJ to get a waiver of False Claims Act remedies.
  8. Protocol requires the provider to have done some level of fraud investigation before they self disclose.  OIG likes to see more work done on the front end.
  9. The OIG coordinates with the DOJ on all investigations.  The DOJ may elect to defer or to participate.  If the DOJ participates, there will also be a False Claims Act issue.
  10. Even if you enter a settlement with the OIG, you may still be open to a False Claims Act action by a whistleblower.  However, there would have been a public disclosure which may cut off a potential whistleblower.
  11. OIG does not go to DOJ until they develop the case and know what they are dealing with.
  12. Intent to make calculation of damages simpler.  They now use 100 claim sample to determine damages.  They tend to take the midpoint on damage calculations.
  13. Thirty to forty percent of self disclosures involve excluded parties.  The new protocols includes more detail on how to self disclose based on excluded parties, OIG requires exclusion checks for all providers are required before submitting a self disclosure.
  14. The self disclosure protocols include a formula for calculating damages when there is no direct billing for an excluded party.  The formula includes multiplying the total cost of employment by the payor mix percentage for federal health care programs.

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John H. Fisher

Health Care Counsel
Ruder Ware, L.L.S.C.
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