On April 17, 2013, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services, which is charged with enforcing the federal health care program fraud and abuse laws, issued new, detailed guidance about the Provider Self-Disclosure Protocol (SDP). The SDP, which was initially created in 1998, establishes a process for health care providers to voluntarily identify, disclose and resolve instances of potential fraud involving the federal health care programs, such as false billing, conduct involving individuals excluded from such programs and improper kickback arrangements.
In this publication, the OIG emphasized that proper use of the SDP frequently results in lower penalties and can toll the statute of limitations for repaying identified overpayments. The guidance also contains a variety of specific requirements for using the SDP which providers should carefully analyze when determining whether using the SDP is appropriate. For instance, in order to use the SDP, providers must, among other things, conduct a thorough internal investigation of the improper arrangement or conduct; specifically calculate estimated damages (if false billing is involved); specifically acknowledge that a potential violation has occurred; and take any corrective action necessary to ensure that the violated conduct has ended or will be ended shortly.
The OIG’s general practice in SDP cases is to require a minimum multiplier of 1.5 times the single damages (the amount paid by the federal health care program), although higher multipliers are used in other cases. For kickback-related disclosures, the minimum required settlement amount is $50,000; for all other SDP matters, the minimum required settlement amount is $10,000. The process can take up to one year on average to resolve self-disclosed conduct.
The SDP is not appropriate for matters that do not involve violations of law for which civil monetary penalties are authorized, such as matters exclusively involving overpayment or errors. The SDP is also not appropriate to request an OIG opinion on the legality of an arrangement or for disclosure of an arrangement exclusively relating to Stark Law issues or liability.
If you would like to discuss the SDP or any other matter involving compliance with federal or state health care laws, please contact one of the health care attorneys at Blalock Walters.