Kusserow on Compliance: Self-disclosures to the OIG continue to result in settlements

The HHS Office of Inspector General (OIG) announced an update on self-disclosures reporting that settlements from that process have exceeded $500 million since the inception of the program in 1998. Health care providers, suppliers, or other individuals or entities subject to Civil Monetary Penalties are encouraged to use the OIG Provider Self-Disclosure Protocol, to voluntarily disclose self-discovered evidence of potential fraud. It gives providers the opportunity to avoid the costs and disruptions associated with a government-directed investigation and civil or administrative litigation.

Settlements are posted on the OIG Website that show amounts through this process most often range between a quarter and a half million dollars, with many under $100,000. However there are some significantly larger settlements in the millions of dollars. By far the large settlement came last year with Kroger Co., who agreed to pay $21,523,047 for (1) employment of 14 excluded individuals; and (2) filling prescriptions written by 84 excluded prescribers. It is also a reminder that the most common self disclosure involves parties on the OIG List of Excluded Individuals and Entities (LEIE). The lesson to be learned from this is to ensure ongoing screening of employees, health care professionals, contractors and vendors, as called for by the OIG. However, many times organizations that do screen frequently are not sufficiently trained to identify and confirm those that may appear on the LEIE. Sometimes this is as the result of slightly different spelling of names, transposition of first and surnames, etc. As such, it pays to train people in resolving potential hits, or use a service that will do it for you.

Guidance on the Provider Self-Disclosure Protocol can be found on the OIG website. The “principal purpose” of this program is making available “guidance to health care providers that decide voluntarily to disclose irregularities in their dealings with federal health care programs.” They accept on submissions relevant to the False Claims Act, the anti-kickback statute, and claims pertaining to excluded individuals. The OIG places emphasis on organizations to undergo a full internal investigation before disclosure submission and providing detailed findings to the OIG. Self-disclosure may be submitted online or by written submissions by mail to the OIG.

Disclosure Benefits

  1. No Corporate Integrity Agreement (CIA)
  2. Lower multiplier (1.5 times single damages)
  3. CMS suspending “the obligation to report overpayments” for those self disclosed
  4. Reduced the time a case is pending to less than 12 months.

The OIG leaves it to the provider to ensure the conduct in violation of federal criminal, civil, or administrative laws ended at the time of disclosure, or that corrective action is undertaken within 90 days of submission to the protocol. They must conduct a review to estimate the improper amount received from a federal healthcare program when reporting a submission of improper claims to the protocol. Damage estimation must be either a review of claims submitted or a random sample of affected claims (the random sample must be accompanied by a copy of the sampling plan). This is a critical step and must be done correctly by experts.

Meet Before Self Disclosing

  • Ensure reportable has ended before disclosure.
  • Corrective actions taken to correct underlying problem and prevent future non-compliance.
  • Waiver of any statute of limitations defenses pertaining to OIG administrative actions.
  • “Must acknowledge that the conduct is a potential violation” and “explicitly identify the laws that were potentially violated.”

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 © 2016 Strategic Management Services, LLC. Published with permission.