On April 15, the Inspector General of the Office of Inspector General (OIG) for the Department of Health and Human Services issued an open letter to health care providers that discusses refinements and clarifications to the OIG Provider Self-Disclosure Protocol (SDP). First released in 1998, the SDP encourages providers to voluntarily report fraudulent conduct affecting Medicare, Medicaid, and other federal health care programs. In his letter, Inspector General Daniel R. Levinson wrote that the SDP’s refinements and clarifications are intended to improve the program’s efficiency and benefit providers who voluntarily disclose self-discovered evidence of potential fraud in federal health care programs.

To supplement certain “basic information” already addressed in the SDP, the open letter outlines four requirements providers must follow for submitting disclosures and also notes OIG’s promise to streamline its internal process for resolving cases. Disclosures to the OIG must contain the following information: “(1) a complete description of the conduct being disclosed; (2) a description of the provider's internal investigation or a commitment regarding when it will be completed; (3) an estimate of the damages to the Federal health care programs and the methodology used to calculate that figure or a commitment regarding when the provider will complete such estimate; and (4) a statement of the laws potentially violated by the conduct.” Further, providers need to complete an investigation and damages assessment within three months after acceptance into the SDP.

In practice, the Department of Justice (DOJ) through its regional U. S. Attorney Offices may also play a central role in accommodating self-disclosure and coordinating resolution with the OIG. Disclosures that are directed to the DOJ, and made outside the OIG Self-Disclosure Protocol, may not require concession of potentially fraudulent conduct by way of acknowledgement of laws potentially violated.

Finally, the open letter from the OIG applies to disclosures directed to that federal agency concerning conduct affecting federal health care programs. For Medicaid matters in New York, a separate over payment disclosure process has been established for reports directed to the New York Office of the Medicaid Inspector General (“OMIG”).

If you have any questions relating to this issue, please contact Steve Ingraham (585-419-8616 or singraham@harrisbeach.com), Tom DeSimon (585-519-8609 or tdesimon@harrisbeach.com), or the Harris Beach attorney with whom you usually consult.

This Legal Alert provides a summary of current health law issues and does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state in Albany, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Syracuse, and Yonkers, as well as Newark, New Jersey.