OIG Issues Updated Provider Self-Disclosure Protocol

An enlarged photo of a word "fraud"The Department of Health and Human Services Office of Inspector General this week issued an updated provider self-disclosure protocol (SDP) that gives healthcare providers guidance on how to disclose potential fraud, avoid prosecution, and mitigate potential penalties under its civil money penalty authority.

OIG first published the protocol in 1998 as a way for healthcare providers to disclose potential fraud involving federal healthcare programs. Since then, the OIG has resolved more than 800 disclosures resulting in more than $280 million in recoveries to federal healthcare programs.

Some of the most common issues providers disclose include:

  • Billing for items or services furnished by excluded individuals
  • Evaluation and management services and DRG upcoding
  • Duplicate billing
  • Alteration or falsification of records
  • Kickbacks and Stark Law violations

The SDP is organized to provide guidance on what submissions should include for specific types of conduct—improper claims, employment of, or contracting with, excluded individuals and violations of the anti-kickback statute.

Some new features include:

  • Minimum settlement amounts of at least $50,000 for self-disclosures involving kickback-related submissions and $10,000 for all other disclosures to reflect minimum civil monetary penalty (CMP) amounts for such violations.
  • Suspension of the obligation to report overpayments under section 1128J of the Social Security Act Waiver of statute of limitations defenses by disclosing parties.
  • Calculation of damages within 90 days of initial self-disclosure (formerly within 90 days of OIG’s acceptance of submission).
  • Minimum sample size of 100 units and the use of a mean point estimate for billing-related disclosures.
  • Express clarification that manufacturers may use the SDP if at least one of OIG’s CMP authorities is implicated by the conduct.
  • Express recognition of the various damage calculation methodologies that OIG has often used in resolving different types of disclosures (e.g., different damage calculation methodologies for excluded individual disclosures versus kickback-related disclosures)

OIG said it will issue further guidance after CMS issues the 60-day overpayment final rule.

Click here to read the full document.

Case Study: Independent ASC’s and outside physicians

May 21, 2012 — Question: An independent ambulatory surgery center (ASC) is open just a few days a week. It is staffed by physicians from the provider group that owns the center.

In an effort to increase revenue, the ASC is considering a deal with an outside, small provider group that seeks to use the ASC on the days when it is usually closed. As part of the agreement, the outside group would be credentialed by the ASC, allowing it to use the ASC’s operating rooms and support staff, without charge.

The outside group would bill its own professional fees, while the ASC would bill for use of the facility. In today’s regulatory environment, should the owners of the ASC be concerned that allowing the outside group to use the ASC for free would constitute a kickback?

Can an ASC allow a provider to come in, use the operating rooms and bill their own fees, without any type of agreement?

Answer: While it may be best to draw up a written agreement setting forth the terms and conditions for using the center’s operating rooms — including for example credentialing the physicians who will use the facility — as long as the outside providers aren’t receiving a cut of the facility fees, then the federal Anti-Kickback Statute (AKS) should not apply. Because outside physician groups are only performing surgery at the ASC, and billing for their professional services, then the arrangement should be no different than if the doctors were performing surgery at a hospital with each party billing for the services they provide.

But, what if the independent physician group wanted to rent the ASC for blocks of time during which they could perform their surgical procedures?  That is also possible provided that the parties enter into a rental agreement meeting both safe harbor and Stark regulatory requirements. The physician group may then be entitled to both a facility fee and their professional fee, subject to applicable state licensure laws and the requirements of Medicare and third-party payers.

Lee Lasris, partner, Florida Health Law Center



Specializing in all areas of health law including fraud and abuse, bioethics, health care business transactions, HIPAA, compliance programs, pharmaceutical, managed care, clinical trials, medical staff issues, contracting and licensure issues.


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