The Department of Health and Human Services Office of Inspector General
should suspend an obligation to report and return overpayments within 60 days
for Medicare providers who voluntarily enter into the provider self-disclosure
protocol, according to comment letters from industry stakeholders sent to the
OIG before an Aug. 17 deadline.
The letters were in response to a notice
the OIG published in the June 18 Federal Register soliciting comments and
recommendations on how to revise the provider self-disclosure protocol (16 HFRA
In a letter dated
Aug. 17, James Madera, executive vice president and chief executive officer of
the American Medical Association, said suspending the 60-day repayment
obligation would make the OIG's self-disclosure protocol consistent with the
Centers for Medicare & Medicaid Services Self-Referral Disclosure
Madera also said that failing to suspend the 60-day obligation could
discourage providers from self-disclosing overpayments.
“Suspending the statutory obligation to report and return overpayments within
60 days would allow the submitting provider, and other providers who may be
implicated in the disclosure, an opportunity to engage with the OIG protocol
staff without running up against the 60-day due date for repayment,” Madera
The 60-day obligation should remain suspended until a provider reaches a
settlement agreement with the OIG or is removed or withdraws from the
self-disclosure protocol, Madera said.
Madera also said the OIG should work to protect the confidentiality of
provider information contained in a self-disclosure.
“Providers who are contemplating disclosing information to the OIG through
the protocol should not be dissuaded from doing so because of confidentiality
concerns,” Madera said.
In an Aug. 16 letter, Charles N. Kahn
III, president and CEO of the Federation of American Hospitals, also supported
suspending the 60-day rule, urging the OIG “to supplement its standard letter to
providers with additional language reflecting this approach to tolling the
overpayment refund timeframe.”
Kahn also said the OIG should clarify whether settling a potential Stark law
violation through the CMS self-disclosure protocol resolves all Stark issues.
The Stark law prohibits physician referrals of Medicare or Medicaid patients to
facilities with which the physicians have a financial relationship.
In 2009, the OIG said it no longer would accept self-disclosures focused
solely on Stark law issues unless the disclosure also involved a “colorable
anti-kickback statute violation.”
“Our overarching concern is that hospitals not be unreasonably burdened when
disclosing a situation that implicates both the Stark statute and the CMP [civil
monetary penalties] Statute,” Kahn said in his letter. “We believe strongly that
where similar facts and parties are involved, a single disclosure should be
appropriate, even if one of the arrangements does not have a colorable
FAH's letter included several additional recommendations, including asking
the OIG to:
away with imposing penalties on providers in cases where no violations have been
providers to consult with OIG staff on any potential self-disclosure settlement;
whether hospitals that are operating under a corporate integrity agreement (CIA)
can enter into the self-disclosure protocol.
James G. Sheehan, chief integrity officer for the New York City Human
Resources Administration (HRA), said the OIG should consolidate its provider
self-disclosure protocol into one document.
“In order to simplify the SDP and make instructions clear, OIG should
consolidate all documents into one comprehensive guide,” he said in an Aug. 16
will be especially helpful for those entities considering disclosure that have
yet to retain knowledgeable players.”
Sheehan, a former federal prosecutor and inspector general for the New York
Medicaid program, said information on the OIG's self-disclosure protocol is
spread out over three letters as well as a link to the Federal
Sheehan also recommended suspending the 60-day repayment obligation, saying
it would encourage more providers to enter into the protocol.
HRA also recommended publishing all disclosures after a settlement has been
reached, as well as committing to a time frame for handling a provider's
Sheehan said the OIG “should indicate when a provider will get accepted or
rejected from the SDP and how long the OIG's resolution process will last.”
Sheehan also said the self-disclosure protocol should guarantee that all
disclosures be treated equally, adding that the OIG should be flexible in regard
to any payments associated with a settlement.
“Much like the Department of Justice, OIG should affirmatively state that the
provider's ability to pay, and if a public entity, the impact on the
organization's mission will be taken into account and should specify the process
for doing so,” Sheehan said.
Another comment letter, from Dianne J. De La Mare, vice president of legal
affairs for the American Health Care Association, said that streamlining the
self-disclosure protocol by eliminating unnecessary questions could help
encourage provider participation and quicken the overall process.
“While originally intended to expedite resolution of potential fraud matters
by shifting the investigative burden to disclosing providers, self-disclosures
under the SDP often are anything but 'speedy,' even though OIG states that the
SDP can 'diminish the time it takes before the matter can be formally
resolved,'” De La Mare said in a letter Aug. 11 to
De La Mare also said the OIG should:
the types of disclosures appropriate for the OIG protocol and those that should
be submitted to a provider's Medicare Administrative Contractor;
a time frame for resolving a provider's disclosure; and
whether providers may face a CIA based on their disclosure.
By James Swann
The AMA comment letter is at http://op.bna.com/hl.nsf/r?Open=jswn-8xdkuz.
The FAH comment letter is at http://op.bna.com/hl.nsf/r?Open=jswn-8xdkvh.
The NY HRA comment letter is at http://op.bna.com/hl.nsf/r?Open=jswn-8xdkw4.
The AHCA comment letter is at http://op.bna.com/hl.nsf/r?Open=jswn-8xdktt.