What Is OIG’s Risk Spectrum

The Office of the Inspector General (“OIG”) recently published the False Claims Act settlements risk spectrum for the first quarter of 2019. The risk spectrum identifies the number of settled cases and their assigned risk category.

Following a settlement of a health fraud case with the OIG the government determines whether a provider or supplier should be excluded. If they continue participating with the Medicare and other Federal healthcare programs the OIG determines whether and the type of oversight would be necessary for the continued participation. The decision to exclude and, if not to exclude, whether the continued participation should involve oversight, is based on the OIG’s determination regarding the future risk that the provider or supplier presents to the Federal healthcare programs. Based on the factors uncovered during an investigation the OIG decides whether a provider or a supplier belongs in the highest, high, medium, lower, or low risk category.

In the first quarter of 2019, five providers/suppliers were excluded, one was placed into a high risk category and 11 entered into Corporate Integrity Agreements (“CIA”) with the OIG. In 32 instances the OIG determined that no further action was needed and 4 providers self-disclosed, putting them in the lowest risk category.

In determining whether to exclude a provider or a supplier or place them into a different risk category, the OIG evaluates specific factors under the following four categories: the nature and circumstances of conduct, conduct during the government’s investigation, significant ameliorative efforts, and history of compliance. Within each category, factors may indicate a higher, lower or a neutral risk assessment.

Highest Risk – If the OIG determines that a provider or supplier poses the highest risk to the Federal healthcare program it will pursue exclusion.

Heightened Scrutiny/High Risk – The OIG may determine that a provider or supplier poses a significant risk to the healthcare program but no agreement on the CIA can be reached. For various reasons the OIG may decide not to exclude a provider or a supplier but it will engage in unilateral monitoring in order to further protect the Federal healthcare programs. As of October 1, 2018, the OIG has started publishing the identities of parties in this category.

Medium Risk/CIAs – Certain settling providers or suppliers are able to avoid exclusion by entering into CIAs with the OIG. The CIAs are designed to show the government a provider’s or a supplier’s willingness to take responsibility for prior conduct and commit to future compliance with program requirements by agreeing to the oversight.

Lower Risk – Based on certain factors, which includes, among others, the absence of egregious conduct, patient harm or the existence a successor owner, the OIG may determine that a provider or supplier poses a lower risk to the Federal healthcare programs. In such instances, the OIG will not exclude or seek a CIA.

Low Risk – If a provider or a supplier self-discloses conduct that raises potential healthcare fraud concerns then the “OIG believes that doing so in good faith and cooperating with OIG’s review and resolution process generally demonstrates that the party has an effective compliance program.” In so doing, the disclosing party may benefit from the OIG’s willingness to work to resolve cases faster and obtain lower settlement amounts as well as a release from potential exclusion with no requirement for a CIA or other oversight requirements.

If you have any questions regarding the OIG’s risk spectrum, enrollment, exclusion, revocation, healthcare audits, overpayment concerns, or have other health law questions please contact our office.