The OIG scrapped its old self-referral voluntary disclosure program in 2009 (it dated back to 1998, and was revisited in 2008), and the PPACA mandated that it be replaced. Just like clockwork, on the deadline for its promulgation, the OIG obliged, and the new Self-Referral Disclosure Protocol is now posted and effective.
The new protocol could be clearer, and could offer more comfort — but it doesn't. Makes one pine for the old policy's clarity: in the old days, voluntary disclosure bought you a discounted fine for Stark violations — not like the new protocol's wishy-washy maybe-we'll give-you-a-discount language. The new protocol also fails to help a provider seeking to disclose past wrongs voluntarily in dealing with the Federales on a number of fronts simultaneously (e.g., for false claims violations, anti-kickback violations, etc., all arising from the same set of facts). We can perhaps blame Congress for that failure, rather than the OIG; the OIG's just implementing the statute as written.
Keep your eyes peeled for some tinkering on this front as the OIG gains some experience working under the new regime.
David Harlow
The Harlow Group LLC
Health Care Law and Consulting
