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: voluntary 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:
Disclosers to DOJ may pay less (lower multiplier) and get more (FCA release). However, voluntarily self-disclosing health care fraud matters directly to DOJ (rather than to OIG-HHS) also carries certain risks and uncertainties, including:
Under either consideration, where to disclose also should involve a consideration of where the conduct occurred and to whom the disclosure will be submitted. Some DOJ components themselves are more cooperative than others and will more readily work with a discloser on the scope of releases, the amount of loss, and any multiplier. Others are more rigid. Selecting a receiving agency more interested in negotiating will improve outcomes for the discloser.
Legal counsel—especially those familiar with OIG and DOJ—can play a pivotal role in advising a discloser on which disclosure route best fits individual circumstances and overall goals. Experienced and capable lawyers also can improve outcomes through familiarity with relevant government agencies and their components and also knowing how to strategically interact with and respond to government follow-up requests in the wake of a self-disclosure. All these special considerations inform whether identified conduct should be self-disclosed in the first instance, and of course, to whom.
Foley is here to help you address the short- and long-term impacts in the wake of regulatory changes. We have the resources to help you navigate these and other important legal considerations related to business operations and industry-specific issues. Please reach out to the authors, your Foley relationship partner, or to our Government Enforcement Defense and Investigations Group or Health Care Practice Group with any questions.