The attorneys of the Oberheiden & McMurrey, LLP are former federal health care prosecutors and attorneys dedicated to professionals in the health care industry. We have a long track record of:
- Avoiding Criminal Prosecution Through Self-Disclosure
- Avoiding Civil Penalties Through Self-Disclosure
- Removing Individuals from the CMS Exclusion List
- Avoiding CMS Exclusion
- Negotiating Probation or Other Less Impactful Remedies with OIG & CMS
The Office of Inspector General (OIG) of the United States Department of Health and Human Services (HHS) has established a process for health care providers to voluntarily identify, disclose, and resolve instances of potential fraud involving the Federal health care programs. This process is called the Provider Self-Disclosure Protocol (the SDP). The SDP provides guidance on how to investigate potentially fraudulent conduct, quantify damages, and report it to OIG to resolve the provider’s liability.
I. Eligibility and Guidance
SDP eligibility extends to all health care providers, suppliers, or other individuals or entities who are subject to OIG’s CMP authorities (see 42 C.F.R. Part 1003) and is not limited to any particular industry, medical specialty, or type of service. Parties already subject to a Government investigation, audit or other oversight activity may be eligible to use the SDP. The disclosure must be made in good faith and cannot be used as an attempt to circumvent any ongoing inquiry. Even parties under a Corporate Integrity Agreement (CIA) with OIG may use the SDP in addition to making any reports required under the CIA.
The SDP should not be used in situations exclusively involving overpayments or errors. The SDP also is not the proper vehicle for requesting an opinion from OIG regarding whether an actual or potential violation has occurred.
It is important to consult an experienced health care law practitioner to determine whether your situation qualifies for the SDP process before making a disclosure.
II. Disclosure Submission Requirements and Content
OIG requires a narrative submission that includes very specific content. The submission must include:
- The name, address, type of health care provider, provider identification number(s), and tax identification number(s) of the disclosing party and the Government payors (including Medicare contractors) to which the disclosing party submits claims or a statement that the disclosing party does not submit claims.
- If the disclosing party is an entity that is owned or controlled by or is otherwise part of a system or network, an organizational chart, a description or diagram describing the pertinent relationships; the names and addresses of any related entities; and any affected corporate divisions, departments, or branches.
- The name, street address, phone number, and email address of the disclosing party’s designated representative for purposes of the voluntary disclosure.
- A concise statement of all details relevant to the conduct disclosed, including, at minimum, the types of claims, transactions, or other conduct giving rise to the matter; the period during which the conduct occurred; and the names of entities and individuals believed to be implicated, including an explanation of their roles in the matter.
- A statement of the Federal criminal, civil, or administrative laws that are potentially violated by the disclosed conduct.
- The Federal health care programs affected by the disclosed conduct.
- An estimate of the damages (or, when feasible, an accounting of actual damages) to each Federal health care program relevant to the disclosed conduct, or a certification that the estimate will be completed and submitted to OIG within 90 days of the date of submission.
- A description of the disclosing party’s corrective action upon discovery of the conduct.
- A statement of whether the disclosing party has knowledge that the matter is under current inquiry by a Government agency or contractor. If the disclosing party has knowledge of a pending inquiry, it must identify any involved Government entity and its individual representatives. The disclosing party must also disclose whether it is under investigation or other inquiry for any other matters relating to a Federal health care program and provide similar information relating to those other matters.
- The name of an individual authorized to enter into a settlement agreement on behalf of the disclosing party.
- A certification by the disclosing party, or, in the case of an entity, an authorized representative on behalf of the disclosing party, stating that to the best of the individual’s knowledge, the submission contains truthful information and is based on a good faith effort to bring the matter to the Government’s attention for the purpose of resolving potential liability to the Government and to assist OIG in its resolution of the disclosed matter.
Specific Requirements for Certain Types of Disclosures
In addition to providing the general information required above, certain disclosures require inclusion of further information. For example, in the instance of a disclosure for having employed an excluded person, the disclosing party must also provide information about the identity of the excluded individual, his or her job duties, and other details. When a disclosure involves the submission of improper claims to Federal health care programs, the disclosing party must conduct a review to estimate the improper claim amount (i.e., damages) and report details about its findings. OIG also outlines precise guidelines for submissions relating to potential violations of the Anti-Kickback Statute (AKS) and Physician Self-Referral Law. Importantly, any submission of this nature must include a clear acknowledgment that the disclosed arrangement constitutes a potential violation of the AKS and, if applicable, the Stark Law.
III. Settlement Amounts
OIG requires a minimum settlement amount to resolve matters using the SDP. For kickback-related submissions accepted to the SDP, a $50,000 settlement threshold applies. For all other matters accepted into the SDP, a $10,000 settlement minimum applies.
OIG does not demand an admission of liability in settlement agreements reached under the SDP process. Upon completion of the process, disclosing parties should expect, however, to pay above single damages for conduct reported. OIG’s general practice is to require that the disclosing party pay at least 1.5 times the single damages owed for the potentially fraudulent conduct. In some instances, OIG may determine that a higher multiplier is appropriate.
About Oberheiden & McMurrey, LLP
Oberheiden & McMurrey, LLP combines the government experience of former federal health care prosecutors and the industry experience of veteran health care defense attorneys to assist clients throughout the United States with CMS and OIG proceedings. Our representations include cases involving Medicare/Medicaid (or Medi-Cal) fraud as well as other health care cases including Tricare fraud, Department of Labor fraud, Stark Law violations, Anti-Kickback Statute violations, and False Claims Act violations.
Contact our offices to schedule a free consultation.
Nick Oberheiden the firm’s managing principal, has built a nationally recognized practice by defending individual and corporate clients in civil and criminal health care prosecutions. Dr. Oberheiden has extensive knowledge in all areas of health care regulation – a routine he uses to his advantage in negotiating exceedingly positive outcomes for his clients.
Lynette S. Byrd also worked as an Assistant United States Attorney (AUSA), prosecuting civil and criminal allegations health care fraud, Anti-Kickback violations, False Claims Act, and Stark violations on behalf of the United States.