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Voluntary Self Disclosure Decisions Can Be Complicated

Provider Self Disclosure Decisions – Voluntary Disclosure Process

OIG Self Disclosure DecisionsThe decision whether or not to voluntarily disclose to the government can be very difficult.  Not every case is clear.

Clearly not every situation where there has been a billing error amounts to fraud or wrongdoing requiring use of the self-disclosure protocol.  Many over-payments that are identified through audit can be dealt with at the intermediary level.  Where investigation raises questions about whether incorrect bills are “knowingly” submitted, the self disclosure process may provide some mitigation of potential loss.  Situations where the provider perhaps “should have known” raise more difficult issues of analysis.

The situation is also complicated because a potential whistle-blower may view a situation much differently than a provider who finds what it believes to be an innocent mistake through the audit process.  A provider may sincerely believe that there was no “wrongdoing” and that a simple mistake has been identified.  Finding such a mistake may actually be evidence that the provider’s compliance efforts are working.  On the other hand, there is a whole legal profession out there now that is advertising for people to come forward with these types of mistakes.  With potential recover under the False Claims Act of 3 times the over-payment plus $11,000 per claim, these lawyers have strong incentive to attempt to turn what the provider believes to be an innocent mistake into a false claim.  This presents risk, even in the more innocent cases involving billing errors.

Generally speaking, when errors are discovered, the providers best bet is to be forthright and deal with the matter “head on.”  A complete internal investigation should be conducted to determine the precise nature of the issues and to identify the extent of wrongdoing.  Based on the outcome of the investigation, the provider can determine whether a simple repayment can be used or whether there may be reason to go through the formal self disclosure process.

Anyone who has worked with reimbursement rules will realize that payment policies, rules and regulations are not always clear.  At times it is difficult to determine whether there is even a violation of applicable rules.  Legal ambiguities further complicate the self disclosure decision.  The precise nature of any legal ambiguities involved in the specific case need to be completely documented.  If a decision is made that there has been no wrongdoing, the legal analysis should be laid out in writing and in detail and a reasonable judgment should be made regarding the interpretation of applicable legal standards.  If self disclosure is made in situations involving legal ambiguities, those ambiguities should be explained in detail as part of the self disclosure.

In the end, a provider facing potential self disclosure must follow a reasonable process to make a reasoned decision.  All elements forming the basis for the reasonable determination must be documented.  In cases of apparent wrongdoing, the provider can expect that its decision will be questioned at some point in the future.  Every step should be taken under that assumption.

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John H. Fisher

Health Care Counsel
Ruder Ware, L.L.S.C.
500 First Street, Suite 8000
P.O. Box 8050
Wausau, WI 54402-8050

Tel 715.845.4336
Fax 715.845.2718

Ruder Ware is a member of Meritas Law Firms Worldwide

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