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OIG has sweetened the medicine, but is self-disclosure a poison pill? The agency’s newly revised self-disclosure guidelines still don’t promise any breaks for providers who voluntarily inform the government of fraud or errors.
Even officials at OIG have admitted that the much-touted pilot Voluntary Disclosure Program (VDP), which officially ran from 1995 to 1997, was a disappointment. Only about a dozen providers entered the program, with recoveries so far a meager $8 million. But the government is still hoping that self-disclosure will allow it to control fraud by encouraging providers to report violations.
"We have sought to address the concerns of the provider community by removing disincentives to participation," says HHS Inspector General June Gibbs Brown. The biggest change to the revamped program, now called the Provider Self-Disclosure Protocol, is allowing providers who step forward to use internal auditors to perform the annual checks mandated by a corporate integrity agreement. A corporate integrity agreement, an onerous document imposed on those who settle with the government, normally requires providers to hire outside firms to perform annual audits and forward the results to OIG.
Other changes to OIG’s self-disclosure program include:
s Accepting all providers. The pilot VDP project was officially open only to selected types of providers in the five Operation Restore Trust states, though OIG had indicated that anyone, anywhere could seek some kind of self-disclosure deal. The new program is open to all.
s Welcoming old business. OIG has dropped a VDP requirement that providers may only disclose matters not already under investigation by state or federal agencies.
s No pre-admission agreement. Providers entering the program had to sign an agreement to cooperate fully with the government, which essentially gave investigators carte blanche to seek evidence.
The advantages of self-disclosure are a chance to avoid the cost and disruption of a government investigation, to reach a fair monetary settlement, and to avoid an OIG permissive exclusion, says Brown. Still, the big sticking point is likely to remain the lack of guarantees for those who confess. "Because a provider’s disclosure can involve anything from a simple error to outright fraud, the OIG is not making any commitments as to how a particular disclosure will be resolved or the specific benefit that will inure to the provider," Brown says. As with VDP, the agency promises only to inform providers that cooperation will generally help them and that their cooperation will be reported to the Justice Department and other agencies.
But when should a provider choose self-disclosure? Even OIG is ambiguous, saying only that self-disclosure is meant for matters that "in the provider’s reasonable assessment, are potentially violative of federal criminal, civil, and administrative laws. Matters exclusively involving overpayments or errors that do not suggest violations of the law" should be directed at carriers and fiscal intermediaries, according to OIG’s guidelines.
But exactly what does this mean? asks an associate counsel for a major Florida hospital. "It’s an easy answer if you detect someone in your organization committing fraud," says the attorney, who requested anonymity. "But what about an erroneous misinterpretation of the rules that creates one billing error that’s repeated over and over again? You have to ask yourself if this is a bad enough error, or is it a pervasive problem?"