Providers may worry that if they report one type of violation through the self-disclosure protocol (SDP), the HHS Office of Inspector General (OIG) will snoop for others. But a former OIG attorney said that’s not how it works.
“Providers who use the self-disclosure protocol are presumed to be taking their compliance obligations seriously and to have an effective compliance program,” said David Traskey, who was a senior counsel at OIG until May. “OIG rewards participation in the self-disclosure protocol” and isn’t using it to “poke around into other aspects of a provider’s practice.” There are two reasons: it could have a chilling effect on future use of the SDP and resources are limited, he said.
A relatively small number of attorneys work on self-disclosures in OIG’s administrative and civil remedies branch (around 30). “As a general matter, they won’t fish around for more work to do,” said Traskey, with Garfunkel, Wild P.C. in Washington, D.C. “They don’t have the time or the bandwidth to say ‘we got a disclosure from the hospital about a problem with incident-to billing in cardiology. I wonder if they have the same problem in orthopedics.’”
The SDP allows providers and suppliers to report potential fraud and resolve it with reduced penalties (e.g., a damages multiplier of 1.5). “In addition, with a nod to the fact you have an effective compliance program, generally there’s the understanding if you come into the self-disclosure protocol, you don’t need to have additional compliance obligations thrust on you, whether it’s a corporate integrity agreement or other integrity agreement,” he said at an Aug. 8 webinar sponsored by the law firm. Traskey handled disclosures from hospitals, home health agencies, skilled nursing facilities, physicians and other entities while at OIG.
Providers who don’t come forward on their own risk an affirmative civil enforcement action and could be liable under civil monetary penalty laws for three times the amount they billed to federal health care programs, he noted.
“Sometimes overlooked as a benefit to the self-disclosure protocol is in resolving potential liability, they give you a release to OIG’s permissive exclusion authorities,” Traskey said.
When providers apply to the SDP, their submissions are reviewed first by a paralegal. “The first cut is to make sure the conduct disclosed is eligible” and all information required in the SDP guidance document has been included. For example, “if someone makes a disclosure that involves Stark only, it will be rejected” and they will be referred to CMS’s Self-Referral Disclosure Protocol. (Conduct that violates both the Stark Law and the Anti-Kickback Statute is appropriate for the SDP.) “It’s important to note that while there is some loose collaboration between CMS and OIG as it relates to their disclosure protocols, they’re not really talking to each other,” Traskey said.
Go With ‘Specificity’ or Go Home
Submissions to the SDP also may be turned away if the provider doesn’t identify “with specificity” the provision of the civil monetary penalty they believe has been affected by their conduct. “If that information isn’t included, there is a high likelihood the application for disclosure will be rejected,” Traskey said.
Also, routine overpayment returns should be sent to Medicare administrative contractors (MACs). MACs don’t typically share repayment information with OIG, although he’s seen instances where that’s occurred. “Occasionally, a provider will make a repayment to the MAC either immediately before being admitted to the self-disclosure protocol, or after being admitted but before the matter is resolved via a settlement agreement with OIG,” Traskey said. “OIG’s awareness of this repayment typically does not come from the MAC, but rather from the disclosing provider. Once OIG is aware of this information, it contacts the MAC to confirm the particulars of the repayment and to ensure the repayment in question is, in fact, related to the matter being disclosed. Outside of the self-disclosure protocol, the MAC may share repayment information with the OIG, if asked.”
Contact Traskey at dtraskey@garfunkelwild.com.