OIG Issues Roadmap on Avoiding Medicare and Medicaid Fraud and Abuse for New Physicians

The U.S. Department of Health and Human Services, Office of Inspector General (OIG) has issued a resource and educational guide for new physicians to help them better understand the key Federal fraud and abuse laws.

As a health care attorney who often deals with physicians on fraud and abuse related matters, I applaud the OIG's effort to provide educational information to help raise the level of understanding on these issues and increase the transparency of these federal laws. This guide won't just be useful for "new" physician but for all physicians to gain a better understanding of the very complex legal/regulatory structure of fraud and abuse laws in the United States.

The new OIG document is titled, "Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse." The physician education roadmap document summarized the five main Federal fraud and abuse laws, including the False Claims Act, the Anti-Kickback Statute, the Stark Law, the Exclusion Statute, and the Civil Monetary Penalties Law. The roadmap document provides tips to physicians on how they should comply with these laws in their relationships with payers (like the Medicare and Medicaid programs), relationships with vendors (like drug, biologic, and medical device companies), and relationships with fellow providers (like hospitals, nursing homes, and physician colleagues).

The roadmap guide was developed as a result of a survey conducted by OIG of medical school deans and designated institutional officials at institutions that sponsor residencies and fellowships to learn what types of instruction medical students, residents, and fellows receive on Medicare and Medicaid fraud, waste, and abuse. Nearly all respondents (92% of deans and 90% of designated institutional officials) reported they would like OIG to provide educational materials they can use. The complete survey, "Medicare and Medicaid Fraud and Abuse Training in Medical Education," was recently issued in October, 2010.

You can view online or download a PDF version of the roadmap guidance materials. I plan to include a copy of this as a part of my hand out materials when I talk to physicians and other health care providers on fraud and abuse issues.

State Medicaid Fraud Control Units Annual Report FY 2008

The DHHS Office of Inspector General has issued the Fiscal Year 2008 State Medicaid Fraud Control Units Annual Report. The report covers FY 2008 (October 1, 2007 - September 30, 2008.

The summary of the report provides background on the Medicaid Fraud Control Unit (MFCU) grant program, the number of states participating, the amounts recovered and number of convictions obtained in FY 2008:

During this reporting period, 49 States and the District of Columbia participated in the Medicaid fraud control grant program through their established MFCUs. The mission of the MFCUs is to investigate and prosecute Medicaid provider fraud and patient abuse and neglect. MFCUs’ authority to investigate and prosecute cases varies from State to State.

Forty-three of the MFCUs are located within Offices of State Attorneys General. The remaining seven MFCUs are located in various other State agencies.

In FY 2008, MFCUs recovered more than $1.3 billion in court-ordered restitution, fines, civil settlements, and penalties. They also obtained 1,314 convictions. MFCUs reported a total of 971 instances in which civil settlements and/or judgments were achieved. Of the 3,129 OIG exclusions from participation in the Medicare, Medicaid, and other Federal health care programs in FY 2008, 755 exclusions were based on referrals made to OIG by the MFCUs.

The report also contains examples of Medicaid fraud and patient abuse and neglect case investigations and prosecutions undertaken during FY 2008.

Read the full report for more information on the role that state MFCUs play in the oversight of the Medicaid program.

OIG Issues Modified Position on Stark Self Disclosure Protocol

Yesterday the Office of the Inspector General (OIG) issued an Open Letter to Health Care Providers making several changes to the Self-Dislcosure Protocol relating to the physician self referral law or Stark Law.

The OIG indicates in the letter that they are no longer going to accept under the self disclosure protocol pure Stark related liability issues. Instead the disclosure must have some type of colorable anti-kickback violation associated with the disclosure. Also, the OIG has established a new floor of $50,000 for settlement of kickback related submissions.

The letter indicates that the OIG is realigning its resources to go after larger violators of the Stark and anti-kickback laws. Inferences can be drawn from the letter that the OIG is not concerned with pure Stark related violations - but the OIG adds caution by stating that providers are not to draw any inferences about the Government's approach to enforcement of the physician self-referral law."

For more information check out the OIG's fraud prevention and detection resources.

Below is a complete copy of the text of the March 24, 2009 Open Letter to Health Care Providers:

An Open Letter to Health Care Providers
March 24, 2009

This Open Letter refines the OIG’s Self-Disclosure Protocol (SDP) to build upon the initiative announced in my April 24, 2006, Open Letter. The 2006 Open Letter promoted the use of the SDP to resolve matters giving rise to civil monetary penalty (CMP) liability under both the anti-kickback statute and the physician self-referral (“Stark”) law. As part of our ongoing efforts to evaluate and prioritize our work, these refinements aim to focus our resources on kickbacks intended to induce or reward a physician’s referrals. Kickbacks pose a serious risk to the integrity of the health care system, and deterring kickbacks remains a high priority for OIG.

To more effectively fulfill our mission and allocate our resources, we are narrowing the SDP’s scope regarding the physician self-referral law. OIG will no longer accept disclosure of a matter that involves only liability under the physician self-referral law in the absence of a colorable anti-kickback statute violation. We will continue to accept providers into the SDP when the disclosed conduct involves colorable violations of the anti-kickback statute, whether or not it also involves colorable violations of the physician self-referral law. Although we are narrowing the scope of the SDP for resources purposes, we urge providers not to draw any inferences about the Government’s approach to enforcement of the physician self-referral law.

To better allocate provider and OIG resources in addressing kickback issues through the SDP, we are also establishing a minimum settlement amount. For kickback-related submissions accepted into the SDP following the date of this letter, we will require a minimum $50,000 settlement amount to resolve the matter. This minimum settlement amount is consistent with OIG’s statutory authority to impose a penalty of up to $50,000 for each kickback and an assessment of up to three times the total remuneration. See 42 U.S.C. § 1320a-7a(a)(7). We will continue to analyze the facts and circumstances of each disclosure to determine the appropriate settlement amount consistent with our practice, stated in the 2006 Open Letter, of generally resolving the matter near the lower end of the damages continuum, i.e., a multiplier of the value of the financial benefit conferred.

These refinements to OIG’s SDP are part of our ongoing efforts to develop the SDP as an efficient and fair mechanism for providers to work with OIG collaboratively. Further information about our SDP can be found at: http://oig.hhs.gov/fraud/selfdisclosure.asp. I look forward to continuing our joint efforts to promote compliance and protect the Federal health care programs and their beneficiaries.

Sincerely,
/Daniel R. Levinson/
Daniel R. Levinson Inspector General