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Health Care Partner Linda Baumann quoted in BNA Health Care Fraud Report on Self-Disclosure Trends

Health care providers increasingly seek advice from attorneys on navigating the distinct forms of self-disclosure to government agencies for regulatory missteps.

“Health care providers have the option to self-disclose Medicare and Medicaid regulatory violations to several different government agencies, including the Centers for Medicare & Medicaid Services, the HHS OIG, and the local US attorney's office. Which of these routes a provider should take depends on the type of violation and the provider's needs in relation to eventual settlement, legal release, and litigation risks,” said Linda. She added “[d]isclosing a potential violation directly to the US attorney can be the best course of action, especially if a provider believes a whistle-blower already filed an FCA lawsuit alleging fraudulent conduct. ‘You'll pay more with the DOJ,’ but a provider will receive a broader release of any alleged fraudulent conduct and FCA liability, which can be worth the price of a higher settlement payment.”

“Providers can self-disclose using the OIG's self-disclosure protocol and the CMS's self-referral disclosure protocol, in addition to directly disclosing to the DOJ. The OIG's self-disclosure protocol covers a variety of potential violations, such as excluded individuals billing federal health-care programs, violations of the kickback statute, violations of the physician self-referral (Stark) law, and overpayments. The CMS's self-referral disclosure protocol covers only potential Stark law violations. After a provider identifies a potential violation, a health care attorney should first determine whether an actual overpayment occurred, and if so, whether the money can simply be reversed back to the provider's Medicare administrative contractor. If not, then the attorney must determine how any self-disclosure or repayment must be made,” said Linda.

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