OIG Updates 2013 Provider Self-Disclosure Protocol
OIG Updates and Re-brands the 2013 Provider Self-Disclosure Protocol
On November 8, 2021, the Department of Health & Human Services (HHS) Office of Inspector General (OIG) released a revised and renamed Provider Self-Disclosure Protocol (SDP). This is the first revision to the SDP since 2013. The OIG also renamed the SDP the “Health Care Fraud Self-Disclosure Protocol” presumably to make clear that the SDP is available to any person and not just health care providers.
The SDP is limited to matters that involve potential violations of Federal criminal, civil or administrative law for which civil monetary penalties (CMPs) are authorized. As described on the OIG website, “Self-disclosure gives persons the opportunity to avoid the costs and disruptions associated with a government-directed investigation and civil or administrative litigation.” One expectation of the SDP is that the provider or supplier have a corrective action in place. Specifically, the problematic conduct should have stopped prior to disclosure or be in the process of termination, and all other necessary corrective action should be complete and in effect at the time of disclosure.
Here are our top takeaways from the revised SDP and what you need to know before starting the self-disclosure process.
Minimum Settlement Amounts: Doubled $$
The OIG has doubled the minimum settlement amounts required to resolve matters accepted into the SDP. For kickback related issues, the minimum settlement amount has increased from $50,000 to $100,000. For all other matters accepted into the SDP, OIG increased the minimum settlement amount from $10,000 to $20,000.
OIG’s Grant and Contractor Self-Disclosure Programs
The revised protocol clarifies that the SDP is not the correct disclosure route for HHS grant recipients, or for federal contractors. These entities should work through the OIG’s Grant Self-Disclosure Program and Contractor Self-Disclosure Program.
Organizations under Corporate Integrity Agreements (CIA’s)
Organizations under CIAs must reference the fact that they are subject to a CIA and send a copy of the disclosure to its OIG monitor. The OIG clarifies that any disclosure that constitutes a reportable event (as defined by the CIA) must be reported to the OIG.
Itemized Damages
The SDP requires that disclosures include an estimate of the damages to each Federal health care program relevant to the disclosed conduct, which can be a challenging task for disclosing parties to calculate. The revised SDP clarified that this estimate must include an itemization of damages for each Federal health care program and the sum of estimated damages for all affected Federal health care programs.
OIG’s Coordination with the Department of Justice (DOJ)
In the revised SDP, the OIG states that it will “advocate that the disclosing party receives a benefit from disclosure under the SDP” for civil matters. In the last [prior] version of the SDP, OIG included this same language regarding criminal matters. However, OIG removed this reference for criminal matters in the revised SDP. The Sentencing Guidelines used for criminal cases continue to reflect “credit” for compliance efforts, but the SDP’s advocacy change may reflect an increasing intolerance for health care fraud that is thought to rise to a level of criminality. OIG also notes that any disclosure of criminal conduct through the SDP will be referred to DOJ for resolution.
Updated Statistics
Updated statistics regarding the SDP process reveal that the OIG has resolved over 2,200 disclosures, which recovered more than $870 million for Federal health care programs.
Online Submission Required
OIG previously allowed organizations to submit disclosures to the SDP via mail. With the revised SDP, OIG is now requiring all submissions through its website.
Conclusion
The revised SDP confirms the OIG’s ongoing expectation that providers and suppliers will identify, rectify, and resolve instances of potential fraud involving all Federal health care programs. In essence, the SDP provides an “exit strategy” for resolution of risk. To take advantage of the SDP, providers and suppliers must have an active and effective compliance program that can identify potentially fraudulent conduct and be able to stop it and address the consequences.
Click the link below to read the entire document on the OIG website.