OIG Revises Self-Disclosure Protocol for First Time Since 2013

By: Catherine (Cat) Kirkland, Partner at Burr Forman, LLP

The Office of Inspector General (“OIG”) provides a way for physicians and other healthcare providers to voluntarily disclose evidence of potential fraud directly to the government through its Health Care Fraud Self-Disclosure Protocol (“SDP”). Self-disclosure through the SDP gives physicians and other providers with an opportunity to avoid or mitigate government investigations, civil/administration litigation, and hefty fines. 

On November 8, 2021, the OIG issued a revised SDP, with several notable updates from the OIG’s previous 2013 version:

  • Online SDP Submissions Only. The OIG requires all disclosures to be made online via the OIG’s website. Previously, disclosures could be mailed, faxed, or even emailed (with permission) to OIG contacts. While online submissions are now required, providers can still tailor their submission by uploading supporting documents (including, for example, a letter outlining the reason for the disclosure) through the OIG’s online portal.
  • Damage Estimates Required. The OIG requires disclosures to include an estimate of damages to each Federal health care program (broken out by program type) and/or a certification from the disclosing party stating that a damages estimate will be supplemented within ninety (90) days of disclosure.
  • Minimum Settlement Amounts Increased. The OIG revised the minimum settlements under the SDP.  Kickback-related submissions now require a minimum settlement of $100,000 (up from $50,000) and all other SDP matters require a minimum settlement of $20,000 (up from $10,000). These minimum settlement amounts apply even if the estimated damages are significantly less than the minimum amount.
  • SDP Inappropriate for Disclosures Related to HHS Grants or Contracts. The OIG also used this update to carve out disclosures related to HHS grants or contracts through a separate disclosure process.
  • OIG Coordination with the Department of Justice (“DOJ”). The OIG also clarified that it would coordinate, as needed, with the DOJ to resolve self-disclosures involving potential criminal conduct.

The SDP remains a valuable way for physicians or other providers to mitigate risk related to potential fraud. For self-disclosures made via the SDP, the OIG has “instituted a presumption against requiring integrity agreement obligations” and the OIG believes “that persons that use the SDP and cooperate with the OIG during the SDP process deserve to pay a lower multiplier on single damages than would normally be required[.]”[1]

A physician or other healthcare provider may utilize the SDP when the provider has reasonably assessed that a potential violation of Federal criminal, civil, or administrative laws has occurred. Examples of conduct that could be disclosed via the SDP include: employment of an individual who has been excluded from Medicare or Medicaid, billing for services provided by an unlicensed and/or non-credentialed individual, and/or arrangements resulting in a kickback or payment for a referral.

The OIG regularly publishes SDP settlements online with the provider’s name and a brief description of the settlement. Examples of recent settlements involving physicians and/or physician practices that self-disclosed to the OIG include:

  • In August 2021, a New York based primary care and urgent care group agreed to pay $50,000 after disclosing that its providers and their immediate family members received cost-sharing write-offs, gifts, and/or meals, potentially in violation of physician self-referral and anti-kickback laws.  
  • In May 2021, a family medicine group in Illinois agreed to pay $62,000 after disclosing that the group had submitted claims to Medicare for services provided by a nurse who was later discovered to be unlicensed. 
  • In March 2020, a multi-specialty group in Hawaii agreed to pay $240,000 after disclosing that the group had submitted claims for evaluation and management services provided by a physician that were not supported by the medical record.

Navigating whether self-disclosure to the OIG is appropriate and how to comply with the SDP rules can be challenging.  Please do not hesitate to contact us should you have any questions about the SDP or any of the underlying issues that could give cause to disclose. 

Catherine (Cat) Kirkland is a Partner at Burr & Forman LLP and practices with the firm’s Health Care Industry Group. Cat may be reached at ckirkland@burr.com or at 251-340-7271.

[1]      OIG’s Health Care Fraud Self-Disclosure Protocol, issued on April 17, 2013, and amended on November 8, 2021, is available at: https://oig.hhs.gov/documents/self-disclosure-info/1006/Self-Disclosure-Protocol-2021.pdf.

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