When a company decides to self-disclose misconduct (or conduct that may be construed as such) to the government, that decision triggers a stream of additional questions. In the weighty deliberations about whether and what to disclose, entities often overlook another important decision: where to disclose.
On November 8, 2021, OIG-HHS updated its Provider Self Disclosure Protocol, including a name change to Health Care Fraud Self Disclosure Protocol (OIG-SDP or Protocol). The majority of the updates were technical in nature and did not change the substance of the Protocol. Foley’s top observations from the updated OIG-SDP can be found here.
The decision whether to self-disclose misconduct through the OIG-SDP is not to be taken lightly. Indeed, many providers, entities, suppliers, etc. are unaware there is another option: voluntarily self-disclosure to the Department of Justice (DOJ). There are benefits and downsides to each self-disclosure avenue that should be considered when making this decision.
Benefits of voluntarily self-disclosing health care fraud matters directly to DOJ include:
Release from False Claims Act (FCA) Liability. An FCA liability release for disclosed conduct means the government will not sue the discloser for the conduct in scope, including for treble damages and penalties. DOJ routinely releases FCA liability. On the other hand, OIG does not provide the same comfort; the OIG-SDP instructions indicate a disclosing party may request a release under...
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