| The Social
Security Act authorizes the Secretary of HHS to seek
civil monetary penalties (CMPs) and assessments for
many types of conduct. The Secretary of HHS has delegated
many of these CMPs to the OIG. In most cases for which
the OIG may seek CMPs, the OIG may also seek exclusion
from participation in all Federal health care programs.
Many of the OIG's CMPs are in the Civil Monetary Penalties
Law ("CMPL"), 42 U.S.C. § 1320a-7a, and the OIG's CMPs
codified elsewhere in the Social Security Act adopt
by reference many of the provisions of the CMPL.
The OIG may seek CMPs
for a wide variety of conduct. See
42 C.F.R. § 1003.102. For example, the OIG may seek
CMPs against any person who:
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Presents or causes to be presented claims to a
Federal health care program that the person knows
or should know is for an item or service that was
not provided as claimed or is false or fraudulent.
42 U.S.C. § 1320a-7a(a)(1)(A) and (B).
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Violates the anti-kickback statute (42 U.S.C. §
1320a-7b(b)) by knowingly and willfully: (1) offering
or paying remuneration to induce the referral of
Federal health care program business; or (2) soliciting
or receiving remuneration in return for the referral
of Federal health care program business. 42 U.S.C.
§ 1320a-7a(a)(7).
- Presents or causes to be presented a claim that
the person knows or should know is for a service for
which payment may not be made under 42 U.S.C. § 1395nn,
the physician self-referral or "Stark" law. 42 U.S.C.
§ 1395nn(g)(3).
In addition, the OIG
may seek a CMP against any hospital that has negligently
violated its obligations under 42 U.S.C. § 1393dd, which
requires: (1) hospitals that operate an emergency department
to provide appropriate medical screening examinations
to individuals who present to the hospital and request
examination; (2) hospitals to provide stabilizing treatment
or an appropriate transfer to any individual who has
an emergency medical condition; and (3) hospitals with
specialized capabilities and capacity to accept appropriate
transfers of individuals with emergency medical conditions.
42 U.S.C. § 1395dd(d)(1)(A). The OIG may also seek a
CMP, and in some cases exclusion, against a responsible
physician, including an on-call physician, who violates
this statute. 42 U.S.C. § 1395dd(d)(1)(B).
The OIG is authorized
to seek different amounts of CMPs and assessments based
on the type of violation at issue. See
42 C.F.R. § 1003.103. For example, in a case of false
or fraudulent claims, the OIG may seek a penalty of
up to $10,000 for each item or service improperly claimed,
and an assessment of up to three times the amount improperly
claimed. 42 U.S.C. § 1320a-7a(a). In a kickback case,
the OIG may seek a penalty of up to $50,000 for each
improper act and damages of up to three times the amount
of remuneration at issue (regardless of whether some
of the remuneration was for a lawful purpose). 42 U.S.C.
§ 1320a-7a(a).
The regulations describing
the administrative appeals process for the OIG's CMP
cases are at 42 C.F.R. part 1005. The formal initiation
of a CMP case occurs when the OIG issues a demand letter
describing the sanction sought (CMP, assessment, and/or
exclusion) and the factual basis for the sanction. The
subject of the action (the respondent) has the right
to request a hearing before an administrative law judge
(ALJ) within HHS. In such a hearing, the OIG and the
respondent have the right to present evidence and make
arguments to the ALJ, who issues a written decision.
The ALJ's decision may be appealed administratively
and to federal court.
Prior to initiating
formal administrative CMP proceedings, the OIG seeks
to resolve matters through negotiation. Most CMP cases
are resolved through settlement with no decision having
been made on the merits of the OIG's allegations or
the respondent's defenses. If the OIG and the respondent
cannot reach a negotiated settlement, the case will
result in an administrative decision, and, if appealed,
additional administrative and court decisions. Any administrative
or court decision represents a finding on the OIG's
allegations and the respondent's defenses. Cases involving
a decision rather than a settlement agreement are clearly
identified below.
Some cases settled by the OIG result from self-disclosures
to the OIG (see
the OIG self-disclosure protocol PDF).
When a health care provider appropriately self-discloses
potentially fraudulent conduct, the OIG takes the self-disclosure
and the provider’s level of cooperation into account
when determining the appropriate settlement terms.
The OIG generally reaches settlement with persons against
whom the OIG is seeking, or considering seeking, CMPs.
The settlement agreements described in this section
resulted from OIG investigations and represent a compromise
by the OIG and the settling party. Unless specifically
identified as an administrative or court decision, all
the matters described in this section are settlement
agreements. In all of these settled cases, the OIG alleged
that certain facts existed and that those facts formed
the basis for the OIG to seek a CMP. In
each CMP case resolved through a settlement agreement,
the settling party has contested the OIG's allegations
and denied any liability. No CMP judgment or finding
of liability has been made against the settling party.
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