OIG says self-disclosure by providers is working
OIG says self-disclosure by providers is working
Most of the 127 self-disclosures reported to the government since 1995 have been sent to carriers for refunds, according to Michael Shaw, an attorney with the Health and Human Services’ (HHS) Office of Inspector General (OIG). However, there have been False Claims Act and civil monetary penalty settlements associated with those self-disclosures, adding up to $41.8 million and 65 pending cases, he reports.
"These are complex matters that needed to be adequately reviewed, and there was the potential for liability in most of those cases," contends Shaw. Nevertheless, in most cases, the final resolution is a referral to the contractor for a refund, he said during the Philadelphia-based Health Care Compliance Association’s (HCCA) June 27 audio conference on self-disclosure.
Shaw says it often is a difficult task to determine whether a sanction is warranted. One of the benefits of the self-disclosure protocol is an expedited review from the government on probable violations rather than a lengthy investigation that may ensue if the matter instead is discovered by the government. However, one of the problems is that providers often submit a request for consideration and then take a long time to give the OIG all the information it needs to appropriately examine the disclosure.
The Department of Justice (DOJ) has no formal program with respect to the False Claims Act or health care, notes DOJ attorney Lawrence Freedman. But he notes that the act does have a little-known provision for self-disclosure. For providers who qualify under these provisions, the statute reduces damages from treble damages to double damages.
To qualify, the provider that committed the violation must furnish officials with information about the violation within 30 days after which the information was first obtained, says Freedman. "The 30 days is a serious date," he warns. "What you know is what you know."
The safest place to make the self-disclosure is often the OIG, according to Freedman. But providers also are free to approach U.S. Attorney’s Offices, DOJ, or other investigative agencies on a more informal basis, he adds. Providers should carefully consider who to report to, but reporting to several agencies can rarely hurt, he says.
Once you discover a serious problem, or a problem that you think may have False Claims liability, it is very important to begin an internal investigation right away, says Ryan Meade, a health care attorney with Katten Muchin in Chicago. "It is important to get on top of the facts and demonstrate that you respond quickly to compliance problems," he says.
If there is potential False Claims liability, that investigation should be conducted under attorney/client privilege, and counsel should be engaged to undertake the internal investigation, he adds. That will make all findings privileged and not discoverable.
While speed is important, thoroughness is just as important, Meade adds. If you are going to reduce your risk of qui tams being filed, it is important that you disclose all relevant facts to the government. "Sometimes, that may mean interviewing people twice," he says.
Finally, Meade says that while cooperating with the government is important, providers making a self-disclosure should ask the agency they approach to notify and coordinate with other agencies. While it is not necessary that numerous agencies be involved to reduce your qui tam risk, Meade says that often helps to present a better "fact scenario" when several agencies are aware of the problem.
Subscribe Now for Access
You have reached your article limit for the month. We hope you found our articles both enjoyable and insightful. For information on new subscriptions, product trials, alternative billing arrangements or group and site discounts please call 800-688-2421. We look forward to having you as a long-term member of the Relias Media community.