All health care providers and suppliers who are subject to OIG’s CMP authority can use the SDP. Providers and suppliers that make a disclosure are referred to as “disclosing parties.” Disclosing parties who are already under investigation or audit are not automatically precluded from making an SDP disclosure, but they must do so in good faith. The SDP process is only for disclosing potential violations of criminal, civil or administrative laws for which CMPs are authorized – this includes the FCA and the AKS. The SDP is not to be used for reporting overpayments, which are generally reported to the MAC, or Stark law violations, which are reported to CMS through its Self-Referral Disclosure Protocol.
The disclosing party must specify the particular law and violation it is disclosing and acknowledge that the conduct being reported is a potential violation. It is equally important that the disclosing party has taken corrective actions to ensure that the conduct has ended. It is important for counsel and the client to identify the root cause of the violation and ensure that corrective action has been taken or is underway.