DOJ and HHS-OIG Set One Door for Criminal Health Care Fraud Self-Disclosures. Know Who Holds the Key in Your Practice.
Under a joint policy signed Oct. 15, a company that self-discloses potentially criminal conduct to the Justice Department's Health Care Fraud Section gets the benefits of the HHS-OIG protocol too. A disclosure to OIG alone generally will not count with DOJ.
The Department of Justice's National Fraud Enforcement Division and the Department of Health and Human Services Office of Inspector General (HHS-OIG) announced a joint self-disclosure policy on Oct. 15. A company that voluntarily discloses potentially criminal conduct involving a federal health care program to the Fraud Division's Health Care Fraud Section now receives the benefits of both DOJ's Corporate Enforcement and Voluntary Self-Disclosure Policy and the HHS-OIG Health Care Fraud Self-Disclosure Protocol, with one submission.
The policy is written for companies, and a practice that bills Medicare, employs advanced practice clinicians or contracts with a management company is one. It changes where a compliance problem with possible criminal exposure should go first.
What the policy says
The four-page policy, signed by Assistant Attorney General Colin M. McDonald with the concurrence of HHS Inspector General T. March Bell, makes two rules. First, a qualifying voluntary self-disclosure to the Health Care Fraud Section receives the benefits of the HHS-OIG protocol, with no duplicate filing through the OIG web portal; the section will promptly send OIG a copy. Second, a disclosure made only to HHS-OIG generally does not qualify as a voluntary self-disclosure to DOJ and generally would not satisfy the criteria for a declination of prosecution under the department's policy. Disclosures to either agency may still be considered as cooperation and remediation.
HHS-OIG updated its protocol the same day. It now states that the protocol is not available for disclosure of federal crimes, that criminal self-disclosures should go to DOJ and that any disclosure of criminal conduct made through the protocol will be referred to DOJ. The protocol remains the route for conduct that may violate civil or administrative law, where the policy lists its benefits as speedy resolution, a lower damages multiplier and an exclusion release without integrity agreement obligations. One limit is written into a footnote: protocol benefits do not include resolution of mandatory exclusion.
The policy gives the reason for the change: a single course of conduct, such as an illegal remuneration arrangement, billing for medically unnecessary services or a scheme involving an excluded person, often creates criminal, civil and administrative exposure at once. "There is now one clear point of contact: DOJ's Fraud Division," McDonald said in the release.
The policy does not tell a practice what is criminal. It tells the practice which door to use once counsel has decided that it might be.
Terms and limits
To qualify, the disclosure must meet every element of DOJ's corporate enforcement policy. A Sidley Austin analysis summarizes those as good faith, conduct DOJ did not already know about, no legal duty to report it, disclosure before an investigation is imminent and disclosure reasonably soon after the company learns of the misconduct. The policy itself says prosecutors keep discretion over declinations. Sidley also notes that it says nothing about False Claims Act matters handled by DOJ's Civil Division, which the firm calls a significant gap. The policy follows an Oct. 1 Fraud Division directive on corporate enforcement, which Sidley says named health care fraud the division's top priority.
What it means for your practice
The following are questions for counsel, not legal advice. Ask who in your organization decides what happens when billing staff or a physician raises a concern about a claim, a referral arrangement or an excluded employee. If the answer is the office manager alone, the process needs outside counsel with health care enforcement experience. Your compliance plan should say that questions with possible criminal exposure go to counsel before any disclosure, and that a filing with HHS-OIG alone may not earn credit with DOJ.
Also check your exclusion screening, since a scheme involving an excluded person is one of the policy's three examples. Our report on CMS’s new exclusion authority covers related ground. Screen every employee and contractor against the OIG exclusion list and keep dated results.
Reported, fact-checked and edited by The Script Pad's editorial staff.
This article is for professional education and does not replace clinical judgment. Treatment decisions should be based on the individual patient and current guidelines.
