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Editor: Mike Bothwell
Profession: Qui Tam Attorney

Category: Qui Tam Legal News

Daniel R. Levinson, HHS Inspector General, recently published an open letter to all healthcare providers to turn themselves in on matters involving kickback and Stark violations.

Inspector Levinson begins by stating that OIG commits substantial resources to promote voluntary compliance with government regulations of the healthcare industry. He points healthcare providers to their website for guidance such as Advisory Opinions and Special Fraud Alerts.

However, the warning is clear that if you do not turn yourself in, you may pay exorbitant damages and penalties through the False Claims Act and face possible exclusion from federal programs. On the other hand, the carrot is that OIG will go easier on companies that promptly self-report. "A provider's self disclosure of conduct continues to be an important factor in determining whether a CCA is appropriate, because detection and prompt disclosure of potential fraud are evidence of an effective compliance program."

Perhaps in addition to encouraging healthcare providers to turn themselves in, OIG should thoroughly study what incentives companies have for not turning themselves in. When Congress considered amending the False Claims Act in 1985, they reviewed the reasons whistleblowers gave for not coming forward. One of the primary issues was that potential whistleblowers did not believe the government would actually do anything about the problem. Perhaps the inverse is also true. It is possible that most companies who cheat the government believe that they won't get caught and if they do, the government won't really punish them for what they did. Maybe by putting more resources into investigating and prosecuting these cases, the OIG will actually provide an added incentive for companies to turn themselves in.