“This is sort of pulling together an amalgamation of all previous guidance,” said Morgan Lewis partner Howard Young, who was a deputy branch chief at the inspector general's office when the original protocol was published. “But there is some new learning that OIG is communicating in this update as well.”
The new document discloses for the first time that companies can expect to pay about 1 ½ times the amount of Medicare proceeds involved in the suspected fraud if they reach a settlement, in most cases. However, the minimum penalty for any disclosure involving a kickback is $50,000, and $10,000 for all other matters.
“We've determined that a 1.5 multiplier provides a financial incentive while still being reflective of the fact that we are talking about conduct that implicates a fraud statute,” said Tony Maida, deputy chief of the Administrative and Civil Remedies Branch of the Office of the Inspector General's Office of Counsel.
The inspector general's office self-disclosure program is intended to resolve matters that implicate the anti-kickback statute. The most common types of kickback issues that hospitals disclose, according to the protocol, are false or inflated Medicare claims, employment of people whom the office has excluded from Medicare, and payments to doctors to induce referrals. The CMS has a separate disclosure protocol for violations of the Stark law.
Most settlements take less than a year after acceptance into the program, according to the new document. To further streamline the process, the agency shortened the window for companies to submit findings of internal investigations to 90 days after the initial submission. Companies that self-disclose almost always avoid having costly and embarrassing corporate integrity agreements imposed on them—that was the case in all but one of 235 cases handled this way since 2008.
