In April, the U.S. Department of Health & Human Services’ Office of Inspector General (OIG) released an updated Provider Self-Disclosure Protocol (SDP) (here). The revised SDP supersedes the original SDP issued in 1998 (here), and incorporates a series of open letters issued by OIG in 2006 (here), 2008 (here), and 2009 (here). In 20012, OIG solicited public comments on its open letter policy. While the new document largely consolidates existing guidance, there are some subtle shifts in policy, which OIG has highlighted in public communications.
Last week, Tony Maida, Deputy Chief of OIG’s Administrative and Civil Remedies branch, spoke at length about OIG’s updated SDP. In this free AHLA-sponsored roundtable, we heard an insider’s (and author’s) perspective on the notable additions to the new SDP, as well as the intentions behind those changes.
First and foremost, the SDP expressly states that voluntary disclosure via the SDP will result in a lower multiplier for calculating civil penalties (it also confirms that a multiplier of 1.5 times single damages is OIG’s longstanding practice). Very rarely will the government be so transparent about its damages calculation, so this is a helpful development. Additionally, Maida stated that OIG agrees with the proposed CMS approach (set forth in this proposed rule) to allow SDP submissions to satisfy the 60-day disclosure rule that arises in the case of overpayments. As discussed here, overpayments that are not timely reported can result in an FCA violation. Though the SDP mentions that this may be the case, Maida’s additional clarification of OIG’s position was valuable—and if the CMS retains this position in the final rule, it will provide some comfort regarding that troubling rule.
As a procedural matter, the new SDP allows for an internal investigation to be completed after the OIG submission, within 90 days (though Maida encouraged investigation findings to be submitted simultaneously). And finally, Maida promised that electronic submission is on the horizon.