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OIG Self Disclosures

The Provider Self-Disclosure Protocol (SDP) establishes “the process for health care providers to voluntarily identify, disclose and resolves instances of potential fraud involving Federal health care programs.” It was first published by HHS-OIG in 1998. In April of 2013, it was updated and republished to provide additional guidance to the health care community. The April 2013 SDP supersedes and replaces the prior SDP and all Open Letters that followed.

In keeping with its sentinel approach to program integrity, the SDP encourages self-reporting because it believes that all members of the health care community have a “legal and ethical duty” to deal with federal health care programs with integrity. The OIG provides the following benefits for disclosure:

    • A presumption against requiring a corporate integrity agreement
    • Lower multiplier on damages
    • Mitigation of exposure from the overpayment requirements of the FCA

Disclosure

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.

Improper Claims

The SPD provides a detailed list of the requirements that must be included in the disclosure. Disclosures can be made online or submitted by mail. Where the disclosure involves the submission of improper claims, the disclosing party must conduct a review of the claims and provide a damage estimate. The SPD provides detailed guidance for this review and estimate. Of course, counsel and the client should retain the necessary outside auditors and experts to conduct this review both for the expertise and the objectivity that external auditors can provide.

Cooperation With OIG

Cooperation and a genuine desire to right the wrong is the essential element of the SDP. This includes submitting all information on a timely basis, communicating through a consistent and highly responsive point of contact, and being willing to pay fines and penalties on a timely basis. The OIG states, “Disclosing parties who fail to cooperate with OIG in good faith will be removed from the SDP.”

The essential components of any successful self-reporting, disclosure or settlement of a government investigation are the following:

    • Swiftly conduct an effective internal investigation
    • Identify the root cause of the overpayment or violation
    • Quickly develop and implement an effective corrective action plan
    • Identify and quantify any overpayments
    • Refund any overpayments or fines to the government

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