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New Fraud Risk Indicator on the OIG Website

on Wednesday, 3 October 2018 in Health Law Advisory: Zachary J. Buxton, Editor

On September 27, 2018, a new post on the OIG website www.oig.hhs.gov educates providers about the Fraud “Risk Spectrum” which categorizes risk from low to the high as follows: the highest risk is program exclusion, followed by the high risk of heightened scrutiny, the medium risk of imposition of a corporate integrity agreement, the lower risk of no further action and the lowest risk that accompanies self-disclosure with a legal release.

The Risk Spectrum is derived from criteria for implementing section 1128(b)(7) exclusion authority published by the OIG on April 18, 2016. The criteria are posted with the Risk Spectrum and explain in detail the four broad categories of behavior that are reviewed in assessing the fraud risk. The four categories are:

  1. The nature and circumstance of the conduct, e.g., adverse impact on individuals whether physical, mental or financial; financial loss to federal health care programs; pattern of wrongdoing (as opposed to an isolated incident), particularly conduct that occurs over a substantial period of time and that is continual or repeated;- actions of leadership with respect to the unlawful conduct—did leaders plan or lead the conduct– and history of prior fraudulent conduct by the individual or entity, e.g., prior convictions, sanctions or CIA.
  2. Conduct during the investigation, e.g., was there obstruction or impediment or attempts to obstruct or impede the investigation; was there concealment; failure to timely comply with a subpoena? There is decreased risk if an internal investigation was conducted and information self-disclosed before the entity knew of an external investigation; acceptance of responsibility for the unlawful conduct and cooperation including disclosing names of individuals with culpability.
  3. Significant ameliorative efforts. Corrective actions lower the risk if the organization has made significant changes such as taking disciplinary action against individuals; increased the resources dedicated to compliance; sale of the entity to a party with a good record of compliance or initiation of training or obtaining technical expertise in compliance.
  4. History of compliance. Risk is lowered if the organization made self-disclosures or refunds prior to becoming aware of an investigation. The absence of a viable compliance program increases the risk.

Items posted on the OIG website are worth noting as they are selectively highlighted to send messages to providers regarding the OIG’s positions and priorities.

Julie A. Knutson

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