Kusserow’s Corner: OIG Views on Compliance Officer Internal Investigations

Recently, the HHS Office of Inspector General (OIG) provided its “Updated OIG’s Provider Self-Disclosure Protocol” (SDP) that superseded its original SDP of 1998.  It streamlined and provided additional guidance and clarification for those making self-disclosure. One specific area of the SDP related to the obligation of conducting a complete internal investigation before submitting a disclosure. If the compliance officer (CO) or others uncover credible evidence of a potential violation of criminal, civil or administrative law, it should be investigated and reported promptly. Doing this and reporting using the SDP will be viewed as demonstrating good faith and willingness to work with governmental authorities to correct and remedy the problem.  It will be considered a mitigating factor by the OIG in determining administrative sanctions (e.g., penalties, assessments, and exclusion).   To make use of the SDP, it is necessary to provide all relevant evidence derived from that investigation related to the alleged violation of applicable of law(s) and potential cost impact.  The internal investigation must be completed within 90 days of submitting a matter to the OIG, rather than from the date of acceptance into the protocol. 

The OIG sees involvement of the CO in conducting investigations as important. Over the years, it has provided considerable compliance guidance relating to the CO responsibilities for conducting investigations. It has noted on numerous occasions that, at a minimum, comprehensive compliance programs should include the investigation and remediation of identified systemic problems.  The CO’s primary responsibilities include independently and promptly conducting and coordinating internal investigations of any potential violation of law, along with, as appropriate, an immediate referral or disclosure to enforcement authorities, including the OIG.

The internal investigation must evidence, in writing, potential violations of specific federal law(s) and fully describe the relevant conduct. The SDP provides little tolerance when submitting an incomplete or untimely disclosure.  A poorly performed investigation can seriously aggravate the situation with the OIG. As such, the following suggestions are offered:

  1. The CO should make sure there are individuals on hand who are trained to properly conduct an investigation and document the results in a report.  It is worth investing in such training.
  2. Give special attention to properly investigating cases involving false claims and arrangements that implicate the AKS.
  3. In cases involving potential violations of law, it is advisable to conduct investigations under direction of, but not necessarily by, legal counsel.  Keep in mind that just because someone is an attorney does not make him or her a competent investigator. Also, investigations conducted by a CO may carry more credibility with the government than one by attorneys, who by definition are advocates and not independent investigators.
  4. Since most cases disclosed to the OIG involve statistical sampling and projections, it is advisable to line up and have available an expert on the subject, especially in understanding the OIG’s Rat-Stat methodology. This is particularly valuable for calculating overpayments and in evaluating the reliability and confidence level of any government agency or CMS contractor demand letters.
Richard P. Kusserow served as DHHS Inspector General for 11 years.  He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters.  The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

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Copyright © 2013 Strategic Management Services, LLC.  Published with permission.