Home Health & Hospice Week

OIG urges physician kickback disclosures.

If you discover possible compliance problems in your organization, who should you tell? The HHS Office of Inspector General would like it to be them.

In an April 24 open letter to health care providers, the OIG urges providers to use its eight-year-old Self-Disclosure Protocol to resolve liability for violations of the physician self-referral and anti-kickback statutes.

The letter focuses on kickback problems between hospitals and physicians, but the same can go for relationships between docs and home care providers, notes attorney Lester Perling with Broad and Cassel in Fort Lauderdale, FL.

"This new self-disclosure initiative will serve as an additional opportunity for providers to work collaboratively with OIG and to take responsibility for further strengthening the integrity of our health care system," Inspector General Daniel Levinson says in the letter.

Feds May Take It Easy On You

The pros: The OIG can waive its authority to exclude providers and individuals from federal health care programs, resolve liability under the punishing False Claims Act and Civil Monetary Penalty law and give eligible providers a Certification of Compliance Agreement rather than a more extensive Corporate Integrity Agreement usually required by OIG settlements, the letter notes.

"The possible monetary burden of a CMP case is enormous," says attorney Deborah Randall with Arent Fox in Washington, DC. The OIG says "it would look to settle on the lowest level of penalties in cases where the provider comes to OIG promptly and has an effective compliance program to avert recurring concerns."

And a CIA can cost more than $100,000 to put in place, notes attorney David Glaser with Frederickson & Byron in Minneapolis.

The OIG letter's timing is helpful, because courts recently have treated claims for improperly referred patients as false claims, notes Burtonsville, MD-based health care attorney Elizabeth Hogue. "The potential liability is just enormous" under the False Claims Act, which allows treble damages, Hogue says.

And the OIG and other federal bloodhounds are investigating more and more suspect relationships between doctors and other providers, Glaser warns.

"Odds are it will go easier if you self-disclose," observes attorney Robert Markette Jr. with Gilliland Markette & Milligan in Indianapolis.

Providers that have entered into the OIG's self-disclosure process in good faith generally have found it turns out well for them, Perling reports.

Look Before You Leap Into Self-Disclosure

The cons: However, providers may want to examine the issue carefully before deciding to self-disclose to the OIG, the legal experts warn.

There is no guarantee of how you'll be treated once you disclose the problems, Markette points out. The OIG's letter highlights that fact, pointing to examples of penalties it levied against providers that didn't live up to their agreements.

And entering the OIG's protocol doesn't preclude liability from the Department of Justice, the OIG adds.

In addition, "providers who self report must be certain that their ducks are in a row," Hogue counsels. That's especially true "in terms of identifying noncompliance, so that it is clear they have the commitment to deal with fraud and abuse issues internally."

Providers generally benefit from self-disclosure only if they already have corporate compliance programs in place, Markette maintains. That might be a big obstacle for some home care providers who have let corporate compliance slip since the big fraud-and-abuse crackdowns of the late 1990s have waned.

Don't automatically assume the OIG is the right place to confess your compliance sins either, Perling warns. Depending on the facts of your situation, you may be better off disclosing problems to your intermediary or carrier, the DOJ or another party.

"Most really experienced fraud and abuse attorneys do not regard the voluntary self-disclosure program through OIG as the best first choice" for disclosure, Randall tells Eli. "In general, the better approach remains through the fiscal intermediary with guidance of experienced health counsel."

You should only report problems to the OIG if you believe someone intentionally violated the law, Glaser maintains.

Caution: You should seek expert legal advice when deciding whether and where to disclose problems, Markette urges. The decision "needs a lot of deliberation," Perling adds. 

Note: The OIG letter is at www.oig.hhs.gov/fraud/docs/openletters/Open%20Letter%20to%20Providers%202006.pdf.