The Daunting Self-Disclosure Protocol

The Self-Disclosure Protocol (SDP) can certainly be daunting. Most of my clients, after they discover abnormalities or aberrant billing, the questions become:

1. Should I self-disclose; or
2. What if the Centers for Medicare & Medicaid Services (CMS)/federal government never discovers the aberrant billing?

The answer is always to self-disclose.

How many days do I have to disclose (or not disclose), once I have discovered an overpayment? Per 42 CFR 401.305, you have 60 days to disclose “identified” overpayments. What does “identified” mean? Recently, I had a client who came to me with “concerns.” I am here to tell you: concerns are not identified facts. If we hire an independent auditor to look into concerns, do we have an identified malfeasance? I say not, until you have a quantified amount.

A recent case shows the importance of self-reporting. On Aug. 26, the United States Attorney’s Office for the District of Montana filed a False Claims Act (FCA) complaint against a Montana oncologist, alleging that the oncologist’s schedule led to excessive claims that violated the FCA. Dr. Thomas Weiner worked at St. Peter’s Health. After Dr. Weiner left, St. Peter’s Health self-disclosed, claiming that Dr. Weiner caused the provider to submit upcoded evaluation and management (E&M) codes. In addition, St. Peter’s self-disclosed Stark Law violations on the theory that Dr. Weiner’s excessive codes, combined with his relative value unit (RVU)-based compensation model, caused St. Peter’s to pay Dr. Weiner more than fair-market value, and an amount that was improperly tied to referrals.

Purportedly, he performed medically unnecessary procedures, billed E&M codes on days when the patients were receiving chemotherapy with no separate medical necessity for the billable E&M encounter, upcoded services, provided primary care (30 percent) but was being paid a medical oncologist’s rate, per wRVU, and ordered opioids in extremely high amounts – and many without any documentation in the patients’ medical records. 

By self-disclosing, you may avoid the following:

1. Civil Money Penalties (CMPs): The Statutory Citation: 42 U.S.C. § 1320a-7a. CMPs can be imposed for a range of offenses, including false claims, overbilling, or underbilling. The penalties can reach up to $23,000 per false claim, or an amount up to three times the amount of damages suffered by the government.

2. FCA Violations: Statutory Citation: 31 U.S.C. §§ 3729-3733. The FCA imposes penalties for submitting false or fraudulent claims to government programs. Violations can result in penalties ranging from $12,537 to $25,074 per false claim, plus treble damages (three times the amount of damages sustained by the government).

3. Criminal Penalties: Statutory Citation: 42 U.S.C. § 1320a-7b. Criminal penalties can be imposed for knowingly and willfully submitting false claims, with penalties including fines up to $25,000 and imprisonment for up to five years.

4. Exclusion from Federal Programs: Statutory Citation: 42 U.S.C. § 1320a-7. Providers found guilty of fraudulent activities may be excluded from participating in Medicare, Medicaid, and other federal health programs. Self-disclosure and cooperative resolution can sometimes prevent or mitigate the severity of exclusion actions.

The case regarding St. Peter’s Health is an example of the benefit of self-disclosure.

By assisting in filing a complaint against their former employee, St. Peter’s Health gets the benefit of the government’s assets and power.

St. Peter’s Health settled for $10.8 million. The settlement was reached after St. Peter’s voluntarily filed an initial self-report in December 2020 and a final report in May 2022 to CMS and the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG), based on concerns identified in an audit of Dr. Weiner’s clinical documentation.

CMS reviewed a sample of medical record documentation and payments St. Peter’s received from Jan. 1, 2015 through Dec. 31, 2020, from federal payors, based on their protocol of a six-year reporting period review.

In 2023, CMS settled 176 self-reported disclosures nationwide.