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What You Need to Know About CMS Self-Disclosure

The attorneys of Oberheiden, P.C. are former federal healthcare prosecutors and lawyers dedicated to professionals in the healthcare industry. We have a long 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 Harmful Remedies with OIG and CMS
Dr. Nick Oberheiden
Attorney Nick Oberheiden
CMS Self-Disclosure Defense Team Leadenvelope iconContact Nick

The Office of Inspector General (OIG) created a way for healthcare providers to identify, disclose, and resolve cases of potential federal healthcare fraud. It is the Provider Self-Disclosure Protocol (SDP). The SDP gives advice on how to identify fraud, estimate damages, and report to OIG. Information provided can be used to determine a provider’s liability.

I. Eligibility and Guidance

SDP extends to all healthcare providers, suppliers, individuals, or entities under OIG’s CMP authority (see 42 C.F.R. Part 1003). It is not limited to a particular industry, medical specialty, or type of service. Parties already under investigation, audit or other inspection may be able to use the SDP. The disclosure must be in good faith and cannot be an attempt to avoid an ongoing inquiry. Parties under a Corporate Integrity Agreement (CIA) with OIG may use the SDP along with reports required under the CIA.

The SDP is not only used in situations involving overpayments or errors. The SDP also is not the proper method to ask OIG if a violation has occurred.

It is important to consult an experienced healthcare law attorney before making a disclosure. An attorney can help you determine if your situation qualifies for the SDP process.

II. Disclosure Submission Requirements and Content

General Requirements
OIG requires a narrative that includes very specific content. The submission must have:

  • The name, address, type of healthcare 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 files claims or a statement that the disclosing party does not file claims.
  • If the disclosing party is an entity 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 authorized representative for the voluntary disclosure.
  • A concise statement of all details relevant to the conduct disclosed, including; 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 with an explanation of their roles.
  • A statement of the federal criminal, civil, or administrative laws potentially violated by the disclosed conduct.
  • The federal healthcare programs affected by the disclosed conduct.
  • An estimate of damages (or, when possible, a report of actual damages) for each federal healthcare program. Absent that, an avowal that a complete estimate will be sent to OIG within 90 days.
  • A description of the disclosing party’s corrective action after discovering the conduct.
  • A statement of whether the disclosing party knows the matter is under inquiry by the government or contractor. If the disclosing party knows of a pending inquiry, it must identify any involved government entity and individuals. The disclosing party must admit if it is under investigation or inquiry for any other matters related to a federal healthcare program and provide similar information regarding the other case(s).
  • The name of an individual authorized to accept 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 for the disclosing party, stating that to the best of the individual’s knowledge, the submission is truthful and in good faith.

Specific Requirements for Certain Types of Disclosures

self-disclosure

In addition to providing the information above, certain disclosures require more details. In a disclosure for hiring an excluded person, the disclosing party must also provide information about the person’s identity, his or her job duties, and other facts. When a disclosure involves the submission of improper claims to federal healthcare programs, the disclosing party must conduct a review gauging the amount (i.e., damages) and report the details. OIG outlines precise guidelines for submissions about possible violations of the Anti-Kickback Statute (AKS) and Physician Self-Referral Law. Submissions must include a clear admission that the disclosed conduct is a possible breach of the AKS and/or the Stark Law.

III. Settlement Amounts

OIG requires a minimum settlement amount in using the SDP. For kickback-related filings, a $50,000 settlement applies. For all other matters, a $10,000 settlement minimum applies.

OIG does not demand an admission of liability in settlement agreements reached under the SDP process. Once the process is complete, disclosing parties should expect to pay more than single damages. OIG generally requires the disclosing party to pay at least 1.5 times the single damages. In some instances, OIG may assign a higher amount.

An Experienced Team

If facing license revocation or suspension. Or, if a board investigates you, contact us today. We offer free and confidential initial assessments. If disbarred or suspended by CMS or your professional board, it is not the end of your career. Get our advice, and benefit from our experience today. Following is a small sample of our many successes for physicians, dentists, and nurses.

  • CMS Exclusion (Removal)
    Client was convicted of Medicare Fraud (while with another law firm) and sought removal from the CMS Exclusion List. We assisted with the removal process and convinced CMS to grant our request. Our client is again practicing medicine.
  • CMS Exclusion
    Client was convicted of Medicaid Fraud (while with another law firm) and sought removal from the CMS Exclusion List. We assisted with the removal process and convinced CMS to grant our request. Our client is again practicing medicine.
  • Dentist Licensing (Board Investigation)
    Client engaged us to represent her in an OIG and board investigation. Client had prior reprimand. The federal government and the board called for license revocation. We conducted a thorough analysis, identified a reputable expert, and successfully defended our client. Client continues to practice — free of restrictions and without board action.
  • Nurse Licensing (Revocation Proceeding)
    Client contacted us after receiving notice the nursing board had begun a license revocation action due to prescription abuse. We intervened and convinced the nursing board to not revoke, not suspend, and not reprimand our client. Our client continues to practice medicine without restrictions.
  • Nurse Licensing (Board Complaint)
    Client contacted us in reasonable fear that her employer would report her to the nursing board for misconduct. We took on the case, conducted a compliance study, and resolved matters with our client’s employer and the board.

Why Do Clients Trust Oberheiden, P.C.?

We are grateful that so many clients choose our firm when they face federal investigation. None of this happens by accident. Below are some reasons why our clients trust the experienced team at Oberheiden, P.C.

1. Our Wealth of Experience

The federal legal system is very different from state legal systems. Our attorneys are highly experienced at the federal level. If you are the target of an inquiry, we can intervene on your behalf. We are also able to successfully resolve matters like regulatory compliance issues.

2. Our Government Insights

You never fully understand a case until you see it from both sides. For most law firms, this broad view is unavailable. We have that perspective because several of our lawyers were successful federal prosecutors before they joined our team. This resource lets us understand federal investigators and prosecutors. We can anticipate their next move.

3. Our Record

Our attorneys have successfully;

  • Dismissed indictments;
  • Avoided criminal charges;
  • Won acquittals;
  • Saved professional licenses, and
  • Won jury trials.

It is not unusual for a client to express surprise when we announce there are no civil or criminal penalties assessed. With so much at stake, you can’t settle for anything less than a winning case.

4. Our Team Spirit

When investigating you, the government won’t assign just one lawyer to your case. Instead, it will use its resources to assign a dedicated team to hound you. To fight back, you need a team of your own. At Oberheiden, P.C., teamwork is our stock-in-trade.

5. Our Profound Commitment

We know how a federal investigation can affect you, your family, and your business. We don’t like bullies, and we push back when the government tries to bully our clients. When you choose Oberheiden, P.C., we work for you. The best possible outcome is our goal.

About Oberheiden, P.C.

Oberheiden, P.C. has the government experience of former federal healthcare prosecutors and the industry experience of veteran healthcare defense attorneys. This expertise assists clients throughout the United States with CMS and OIG proceedings. Our work includes Medicare/Medicaid (or Medi-Cal) fraud, Tricare fraud, and federal workers’ compensation.

Contact our offices to schedule a free initial consultation.

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