healthcare compliance 1 - (health information management)
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Chapter_12-_HC_Compliance_I_-1.pptxChapter 12
Repayments and Disclosures
Learning Objectives
Circumstances when disclosure and repayment might make sense
Government agencies for disclosures
Legal bases for duty to disclose and repay
Benefits and disadvantages of self-disclosure
Importance of advice of legal counsel
Process for conducting a self-disclosure
Differences between OIG SDP and Stark SRDP
Introduction
Self-disclosure may be indicated by a report of non-compliance, a routine internal audit, or the discovery of a billing error in the normal course of business.
Self-disclosure may be directed to the CMS, a CMS intermediary or carrier, the OIG, the DOJ, the FBI, a state Medicaid Fraud Control Unit, or a state agency responsible for provider licensing.
Legal Bases for Repayment and Disclosure
Patient Protection and Affordable Care Act (PPACA)
False Claims Act (FCA)
Stark Physician Self-referral Law
Anti-Kickback Statute (AKS)
Health Insurance Portability and Accountability Act (HIPAA)
Patient Protection and Affordable Care Act (PPACA)
Overpayment reported and returned within 60 days of identification.
Patient co-payments returned as well.
Disclosures and repayments submitted to Medicare “affiliated carrier”.
False Claims Act (FCA)
Reduce treble damages for false claim to double damages by disclosing violation within 30 days of learning about it.
“Reverse false claim”: a violation for a person or organization to make a fraudulent statement in order to avoid or reduce an “obligation” to make a payment to the federal government.
Stark Physician Self-referral Law
The Self-Referral Disclosure Protocol (SRDP) was created in 2010 and applies only to the Stark Physician Self-referral Law.
It is used to resolve overpayment liability exposure resulting from a violation.
Detailed information about the violation and the entity’s compliance program is submitted to CMS.
In response, the CMS “may” reduce any overpayments owed due to the violation.
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Anti-Kickback Statute (AKS)
In 1998, the OIG issued a Self-Disclosure Protocol (SDP) to be used to report overpayments connected with the AKS or both the AKS and the Self-Referral Law.
Overpayments related to the Self-Referral Law alone are handled through the SRDP.
Offers opportunity to reduce the severe penalties associated with AKS violations.
Health Insurance Portability and Accountability Act (HIPAA)
In the landmark ETHC case, federal government brought criminal charges for failure to refund overpayments related to HIPAA.
Case involved overpayments from private payors and individual patients, akong with Medicare and Medicaid.
Benefits of Self-Disclosure
More congenial, less adversarial relationship with the enforcement officials
More influence over the conduct of the government investigation
Reduced likelihood of subpoenas or search warrants
Reduced penalties for a FCA violation
Less likely that government will prosecute
Less onerous terms of any settlement
Disadvantages of Self-Disclosure
Violation incident might never be discovered
Many “benefits” are not guaranteed
Other misconduct and violations may be revealed
Minor event may become larger, more serious, and more expensive
Government may view incident more seriously and impose harsher penalties, including as CIA
Carrying Out a Self-Disclosure
To which agency to self-disclose
Determine which protocol to use
OIG Self-Disclosure Protocol (SDP)
Stark Self-Referral Disclosure Protocol (SRDP)
Disclosure submission process
Details to be included with disclosure
Possible agency responses to disclosures
