The OIG recently issued an update to its self-disclosure protocols to supply providers with additional guidance for self-disclosure. In touting the benefits of self-disclosure, the OIG update notes that it now rarely requires integrity agreements in conjunction with self-disclosure settlement, it’s damage multiplier may be as low as 1.5, and the self-disclosure may stop the sixty (60) day clock running on potential False Claims Act liability.
The updated protocols emphasize that not every billing error is eligible for or should be reported under these protocols. Reporting is limited to matters that may potentially violate federal laws for which civil monetary penalties are authorized. Thus, for example, if you should discover that you may not have met all the criteria for provider based billing in an off campus clinic, you may have billing errors, but properly and promptly addressed, these do not invoke civil monetary penalties.
Recognizing that conduct for which civil monetary penalties are authorized also may be conduct that violates the Stark law, the updated protocols have a separate section providing guidance for disclosing arrangements that potentially violate both anti- kickback and Stark laws. Arrangements that potentially violate both anti-kickback and Stark laws should be disclosed under the OIG protocol and not under the CMS stark self-disclosure protocol. Of note in comparison to the CMS self-disclosure protocol for potential Stark violations, the updated OIG protocol is very clear that the self-disclosure submittal must clearly acknowledge that the disclosed arrangement constitutes a potential violation of the anti-kickback and Stark laws.
As part of its on-going quarterly lunch time webinar series, the Ogden Murphy Wallace Healthcare Practice Group will provide a presentation on self-disclosure options and avoidance of state and federal false claims act liability in its June 2013 webinar (to register click here). If you have questions regarding these updated protocols or self-disclosure and overpayments in general please contact Greg Montgomery.
