Voluntary self-disclosure of a potential overpayment matter or other non- compliant activity may be mandated
by law under certain circumstances and/
or potentially be appropriate (if not man-
dated by law) and offer protections
too significant to pass up under the
circumstances. Self-disclosures can
be a useful option for not only over-
payment matters, but a wide array
of non-compliant activity, including
misconduct and substantial viola-
tions of law. However, in considering
the options for self-disclosure, a pro-
vider or supplier should carefully evaluate
the relevant pros and cons of each situation,
as well as the most appropriate agency entry
point for the self-disclosure. Careful con-
sideration may lead to the conclusion that
self-disclosure may not even be warranted,
but this determination should be made after
a careful and thorough analysis, taking into
consideration the facts and applicable legal
considerations, best practices, the risk of
non-disclosure and, ultimately, the advice of
experienced counsel for these matters.
A self-disclosure can be made to the
Office of Inspector General of the Department
of Health and Human Services (OIG); the
Centers for Medicare & Medicaid Services
(CMS); or the Department of Justice, U.S.
Attorney’s Office (DOJ), or even the Attorney
General of the state of location. There are
no hard and fast rules, and the specific and
precise factual and legal circumstances of
each potential disclosure matter will dictate whether, and when, to self-disclose
and which agency will be the best choice to
receive an initial self-disclosure. Regardless
of which agency receives the disclosure, all
the relevant agencies coordinate with each
other, to some extent, to assess the warranted
criminal and civil liability of the specific
by Gabriel Imperato, Esq., CHC
Guidelines for self-disclosure:
Who, what, how, and when?
» Self-disclosure may or may not be mandated by law, but may be the prudent option under certain circumstances depending on
the facts, law, and risk of liability for the organization.
» The benefits of self-disclosure may be too compelling to pass up under certain circumstances, but this option will likely always
result in financial liability for an organization.
» The options for self-disclosure are numerous, and the choice of agency will largely depend on careful consideration of the
scope of liability to be resolved through the self-disclosure.
» A thorough internal investigation of the matter to be disclosed will be necessary for a successful resolution and release from
liability from the government agency.
» The consideration of whether, when, where, and how to make a self-disclosure should be made with the assistance of experienced and competent counsel in conjunction with leadership of the organization.
Gabriel Imperato ( firstname.lastname@example.org) is a Managing
Partner with Broad and Cassel in Fort Lauderdale, FL and a Board member