The Office of Inspector General (OIG) has recently posted the False Claims Act (FCA) settlements for FY 2022 Q1–Q4 on the risk spectrum. The government’s primary civil tool for addressing healthcare fraud is the FCA. Most of these cases are resolved through settlement agreements in which the government alleges fraudulent conduct and the settling parties do not admit liability. Based on the information it gathers in an FCA case, the OIG assesses the future trustworthiness of the settling parties (which can be individuals or entities) for purposes of deciding whether to exclude them from the Federal healthcare programs or take other action.
The OIG applies published criteria to assess future risk and places each party to an FCA settlement into one of five categories on a risk spectrum. The OIG uses its exclusion authority differently for parties in each category and bases its assessment on the information it has reviewed in the context of the resolved FCA case. Because the OIG’s assessment of the risk posed by a FCA defendant may be relevant to various stakeholders, including patients, family members, and healthcare sector professionals, the information about where a FCA defendant falls on the risk spectrum is made public.
FCA Settlements on the Risk Spectrum for FY 2022 Q1–Q4:
- 17 Exclusions (Highest Risk)
- 0 Heightened Scrutiny (High Risk)
- 31 Corporate Integrity Agreements (CIAs) (Medium Risk)
- 164 No Further Actions (Lower Risk)
- 20 Self-Disclosures (Low Risk)
The risk categories are described as follows:
- Highest Risk—Exclusion: Parties that the OIG determines present the highest risk of fraud will be excluded from Federal healthcare programs to protect those programs and their beneficiaries. Excluded individuals and entities are listed in the OIG’s exclusions database.
- High Risk—Heightened Scrutiny: Parties are in the high risk category because they pose a significant risk to Federal healthcare programs and beneficiaries. This is because, although the OIG determined that these parties needed additional oversight, they refused to enter CIAs sufficient to protect Federal healthcare programs.
- Medium Risk—CIAs: Healthcare providers and other entities in the medium risk category have signed CIAs with the OIG to settle investigations involving Federal healthcare programs. Under these agreements, parties promise to fulfill various obligations in exchange for continuing to participate in the programs.
- Lower Risk—No Further Action: The OIG sometimes concludes that parties present a relatively low risk to Federal healthcare programs. As a result, the OIG is not seeking to exclude them from those programs or to require a CIA. OIG cases against these parties are closed without evaluating the effectiveness of any efforts the parties have made to ensure future compliance with Federal healthcare program requirements.
- Low Risk—Self Disclosure: A party may disclose evidence of potential fraud related to Federal healthcare programs to the OIG. The OIG believes that doing so in good faith and cooperating with the OIG’s review and resolution process generally demonstrates that the party has an effective compliance program. The OIG works to resolve such cases faster, for lower settlement amounts, and with a release from potential exclusion, with no CIA or other requirements.
Issue:
Providers must ensure that the claims they submit to Medicare and Medicaid are true and accurate. One of the most important steps a provider can take is to have a robust internal audit program that monitors and reviews claims. If a provider identifies billing mistakes in the course of those audits, the provider must repay overpayments to Medicare and Medicaid within 60 days to avoid False Claims Act liability. Providers also can disclose billing errors to the OIG through the OIG Self-Disclosure Protocol.
Discussion Points:
- Review your policies and procedures for preventing and reporting a false claim and for conducting a Triple Check Process to verify accuracy of Medicare claims. Ensure that your policies are reviewed at least annually and updated when new information becomes available.
- Train all staff upon hire and at least annually on your compliance and ethics policies and procedures and on what can be considered a false claim. Provide training to appropriate staff on the Triple Check Process for ensuring accuracy of all Medicare Part A billing and supporting documentation before claims are submitted. Members of the compliance and ethics committee should periodically receive additional training on compliance and ethics issues in healthcare. Document that these trainings occurred and file the signed document in each employee’s education file.
- Periodically perform audits to ensure all staff are aware of compliance and ethics concerns and understand their responsibility to report any potential compliance and ethics violations to their supervisor, the compliance and ethics officer, or via the anonymous hotline. Audit to ensure that the Triple Check Process is being followed each month before claims are submitted to Medicare, and that any identified irregularities are corrected.
