On October 15, Assistant Attorney General Colin M. McDonald issued a Memo announcing new coordination between the National Fraud Enforcement Division (NFED) and the U.S. Department of Health and Human Services Office of Inspector General (OIG) regarding self-disclosure in criminal health care fraud matters.[1]
The Memo notes that in the area of health care fraud, a single course of conduct “frequently gives rise to overlapping criminal, civil, and administrative matters involving” NFED’s Health Care Fraud Section and OIG. The Memo goes on to note that “[g]iven the potential for different types of consequences for a single course of conduct, a company that identifies potentially criminal conduct must therefore decide not only whether to disclose but where to disclose.” Under the new policy, “[a] company is required to make only one disclosure to the Health Care Fraud Section to obtain the benefits of both” the Department of Justice (DOJ) Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP) and the OIG Health Care Fraud Self-Disclosure Protocol (SDP),[2] which is available for conduct that potentially violates laws implicating OIG’s authorities under the Civil Monetary Penalties Law.[3]
Regarding the CEP, the Memo explains that “when a company has voluntarily self-disclosed misconduct to [DOJ], fully cooperated, and timely and appropriately remediated [in accordance with the CEP’s standards] [DOJ] will decline to prosecute the company absent aggravating circumstances.” Disclosure under the SDP likewise “provides significant benefits . . . including a speedy resolution, lower multiplier, and an exclusion release without integrity agreement obligations.” A disclosure made only to OIG under the SDP, however, “generally does not qualify as a voluntary self-disclosure to NFED and, therefore, “a party in the health care industry that seeks to benefit from both the CEP and [SDP] should make its initial disclosure of potentially criminal conduct to” NFED. That said, “disclosures to either government agency may be considered as part of a company’s cooperation and remediation.”
If you have questions about DOJ’s new self-disclosure coordination policy or how it could affect your organization, you may contact the author at Geoffrey.Kaiser@rivkin.com or (516) 357-3161.
Sign up to receive Rivkin Rounds at www.RivkinRounds.com.
[1] https://www.justice.gov/opa/media/1466291/dl?inline
[2] https://oig.hhs.gov/documents/self-disclosure-info/11951/hhs-oig-self-disclosure-protocol.pdf
[3]42 U.S.C. § 1320-7a