An Open Letter To Health Care Providers March 24, 2009 This Open ...

DEPARTMENT OF HEALTH & HUMAN SERVICES
Office of Inspector General
Washington,
D.C.
20201
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