Attorneys

• Robert J. Saner II

OIG Open Letter to Health Care Providers: Corporate Integrity Agreements

On November 20, 2001, in an "Open Letter to Health Care Providers," the Department of Health and Human Services' Inspector General ("IG"), Janet Rehnquist, outlined new criteria for determining when and to what extent corporate integrity agreements (CIAs) will be necessary in future settlement agreements. In addition, Rehnquist announced modifications to the claims review procedures that will not only be incorporated into future CIAs, but will also benefit some providers already operating under a CIA.

Specifically, in regards to the elements the Office of Inspector General ("the OIG") will consider in evaluating the need and/or extent of a CIA, the IG's letter directs OIG staff to consider the following eight criteria: (1) whether the provider self-disclosed the alleged misconduct; (2) the monetary damage to the Federal health care programs; (3) whether the case involves successor liability; (4) whether the provider is still participating in the Federal health care programs or in the line of business that gave rise to the fraudulent conduct; (5) whether the alleged conduct is capable of repetition; (6) the age of the conduct; (7) whether the provider has an effective compliance program and would agree to limited compliance or integrity measures and would annually certify such compliance to the OIG; and (8) other circumstances, as appropriate.

As for the modifications to the billing review procedures set forth in the IG's letter, full statistically valid random sampling will be required only if the initial claims review (now called a "discovery sample") shows a financial error rate of 5 percent or greater. Providers with unacceptable error rates will be required to engage an independent review organization ("IRO") to conduct the more comprehensive review. Notably, the OIG will be reviewing each existing CIA in order to determine whether it is appropriate to incorporate the new claims review procedures.

The IG's Open Letter to Health Care Providers is posted on the OIG's website at http://oig.hhs.gov/modcomp/openletters/openletter111901.htm. If you have any questions concerning the applicability of this Open Letter to your particular circumstances, or if you would like to discuss issues related to Medicare or Medicaid fraud and abuse law, please call Bob Saner, Marla Spindel or Anthony Russo, or the attorney with whom you regularly work at our firm. We can be reached at (202) 466-6550.