On November 8, 2021, the United States Department of Health and Human Services Office of Inspector General (HHS OIG) updated the Health Care Fraud Self-Disclosure Protocol (SDP). The SDP is meant to be used by providers, suppliers, and other individuals/entities subject to Civil Monetary Penalties (CMPs) to voluntarily disclose self-discovered evidence of potential fraud.
The SDP provides guidance on how to investigate conduct, quantify damages, and report the conduct to OIG to resolve any potential liability under OIG’s CMP authorities. Between 1998 and 2020, HHS OIG has resolved more than 2,200 disclosures, resulting in recoveries of more than $870 million to the Federal health care programs.
By opting to self-disclose, providers have the chance to avoid the cost and disruption associated with a government-directed investigation and subsequent civil or administrative litigation. This recent update includes revisions to the form made to incorporate legal changes that have occurred since the last revision to the form in 2013.
Since the original publication of the SDP in 1998, HHS OIG has identified different areas where further guidance would be helpful to the healthcare community and would improve the efficiency of SDP resolutions by seeking input from stakeholders. In 2006, 2008, and 2009, HHS OIG issued Open Letters to Health Care Providers; in 2012, HHS OIG sought public comments about the SDP and updated it in its entirety in 2013.
Some Things Change…
As noted above, the last time the SDP was updated was in 2013. This time, the form indicates the increased minimum amounts required to settle under the SDP, to match new statutory minimum penalty amounts; requires SDP submissions to be made electronically through the HHS-OIG website; and adds references to the OIG 2019 Grant and Contract SDPs.
Additionally, the revised SDP clarifies that Reportable Events found in a company’s corporate integrity agreement can be disclosed under the SDP and that the Department of Justice (DOJ) is able to settle certain SDP cases. It also clarifies that disclosures must include all damages to each affected federal healthcare program, along with the sum of all damages.
The updated SDP also made technical changes to statistics, terminology, and background facts.
…And Some Things Stay the Same
While there have been some changes made to the SDP form, the timelines and content requirements have not changed, nor have the methods for calculating damages. Additionally, the possibility and structure of a timely settlement with a lower multiplier and exclusion release also stay the same as prior versions.