OIG and CMS Voluntary Self Disclosures: Weighing the Risks and Rewards of Self Reporting

An increasing wealth of information is available regarding the risks and benefits of self-disclosure, including many large settlements that have recently been reported under CMS’ Self-Referral Disclosure Protocol (SRDP). This May, CMS announced that it is considering an optional expedited SRDP process for disclosures that meet certain eligibility requirements. Finally, the OIG has updated its self-disclosure protocol (SDP), providing the particulars on benefits of disclosure, eligibility criteria and guidance, and requirements of provider submissions.

Counsel to healthcare providers must understand these and other potential tools for resolving Stark law or Anti-Kickback Statute violations. The options have never been so varied as they are now, with each pathway presenting its own advantages and disadvantages.

Then of course there is the challenge of navigating these pathways and their peculiar requirements and measures.

A panel of healthcare attorneys explained the pros, cons and procedural steps for disclosing under OIG’s SDP or CMS’ SRDP. The panel discussed effective approaches for evaluating whether to self-report violations and for achieving favorable outcomes.

Outline

1. CMS’ self-referral disclosure protocol
2. OIG’s self-disclosure protocol
3. SRDP vs. SDP
4. Best practices for self-disclosure
   1. Are there alternatives to self-disclosure?
   2. When to disclose and to whom?
   3. Potential risks of making a self-disclosure
   4. Preserving privileged communications

Benefits

The panel reviewed these and other key questions:

• What factors should healthcare providers consider when determining whether and when a potential Stark law or AKS violation should be disclosed?
• Which vehicle should healthcare providers use when making a self-disclosure—SDP vs. SRDP?
• What are the best practices for healthcare providers and their counsel when preparing the SDP or SRDP disclosure submission?