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OIG updates Self-Disclosure Protocols

We conduct internal audits to help better ensure our practice complies with applicable regulations. So what happens when we find an issue? We resolve it, but were fraudulent mistakes already made?

In these situations, one option is the Department of Health and Human Services Provider Self-Disclosure Protocol (SDP). Providers can use the SDP to disclose and resolve any problems within their practice that could result in allegations of fraudulent activity.

How often do providers use the SDP?

Use of the program is not uncommon. The OIG reports that between 1998 and 2020 it resolved over 2,200 disclosures.

How does it work?

The HHS’ Offices of the Inspector General (OIG) provides an online option. Essentially the process involves filling out a form, but the directions can be a bit convoluted. To further complicate matters, the OIG recently revised the protocol. Changes include:

  • Increased settlements. The OIG has doubled the minimum settlement amounts. It now requires $100,000 for AKS matters and $20,000 for all others. There are exceptions, such as the ability to demonstrate an inability to pay.
  • Required itemized damages. The feds also require the provider give an itemized estimate of the damages for each federal health care program impacted by the fraudulent event.

Additional updates were also made that allow for use of the lower damages multiplier and allowance of the SDP to serve as a report as required under Corporate Integrity Agreements.

Why would I use the program?

The OIG touts the program as an opportunity to “avoid the costs and disruptions associated with a government directed investigation and civil or administrative litigation.” Furthermore, the penalties can be much higher if the feds decide to pursue a case against the practice. For AKS violations, for example, the OIG could impose up to $100,000 for each individual violation and an assessment of three times the total amount of the kickback. Disclosure through the SDP can also remove other burdens, such as the required corporate integrity agreements generally required in the event an investigation led to a conviction.

It is also important to note that this addresses the OIG — the Department of Justice is not included in this agreement. Thus the DOJ could still pursue allegations of a violation of the False Claims Act (FCA). As such, it is important to carefully review any potential violations and all options for disclosure to better understand the full impact of each before moving forward with the SDP or other programs.

Attorney John Rivas is responsible for this communication