Federal Register: December 19, 2007 (Volume 72, Number 243)
DOCID: fr19de07-41 FR Doc E7-24579
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Inspector General Office, Health and Human Services Department
CFR Citation: 42 CFR Part 1001
NOTICE: PROPOSED RULES
DOCID: fr19de07-41
ACTION: Medicare and State health care programs; fraud and abuse:
DOCUMENT ACTION: Notice of intent to develop regulations.
SUBJECT CATEGORY:
Solicitation of New Safe Harbors and Special Fraud Alerts
DATES: To assure consideration, public comments must be delivered to the address provided below by no later than 5 p.m. on February 19, 2008.
DOCUMENT SUMMARY:
In accordance with section 205 of the Health Insurance Portability and Accountability Act (HIPAA) of 1996, this annual notice solicits proposals and recommendations for developing new and modifying existing safe harbor provisions under the Federal antikickback statute (section 1128B(b) of the Social Security Act), as well as developing new OIG Special Fraud Alerts.
SUMMARY:
New safe harbors and special fraud alerts; solicitations,
SUPPLEMENTAL INFORMATION
Submitting Comments: We welcome comments from the public on recommendations for developing new or revised safe harbors and Special Fraud Alerts. Please assist us by referencing the file code OIG112N.
Inspection of Public Comments: All comments received before the end
of the comment period are available for viewing by the public. All
comments will be posted on http://www.regulations.gov as soon as
possible after they have been received. Comments received timely will
also be available for public inspection as they are received at Office
of Inspector General, Department of Health and Human Services, Cohen
Building, 330 Independence Avenue, SW., Washington, DC 20201, Monday
through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone (202) 6190089.
I. Background
A. OIG Safe Harbor Provisions
Section 1128B(b) of the Social Security Act (the Act) (42 U.S.C.
1320a7b(b)) provides criminal penalties for individuals or entities that knowingly
[[Page 71869]]
and willfully offer, pay, solicit or receive remuneration in order to
induce or reward business reimbursable under the Federal health care
programs. The offense is classified as a felony and is punishable by
fines of up to $25,000 and imprisonment for up to 5 years. OIG may also
impose civil money penalties, in accordance with section 1128A(a)(7) of
the Act (42 U.S.C. 1320a7a(a)(7)), or exclusion from the Federal
health care programs, in accordance with section 1128(b)(7) of the Act (42 U.S.C. 1320a7(b)(7)).
Since the statute on its face is so broad, concern has been expressed for many years that some relatively innocuous commercial arrangements may be subject to criminal prosecution or administrative sanction. In response to the above concern, the Medicare and Medicaid Patient and Program Protection Act of 1987, section 14 of Public Law 10093, specifically required the development and promulgation of regulations, the socalled ``safe harbor'' provisions, specifying various payment and business practices which, although potentially capable of inducing referrals of business reimbursable under the Federal health care programs, would not be treated as criminal offenses under the antikickback statute and would not serve as a basis for administrative sanctions. OIG safe harbor provisions have been developed ``to limit the reach of the statute somewhat by permitting certain nonabusive arrangements, while encouraging beneficial and innocuous arrangements'' (56 FR 35952, July 29, 1991). Health care providers and others may voluntarily seek to comply with these provisions so that they have the assurance that their business practices will not be subject to liability under the antikickback statute or related administrative authorities.
Existing OIG safe harbors describing those practices that are sheltered from liability are codified in 42 CFR part 1001.
B. OIG Special Fraud Alerts
OIG has also periodically issued Special Fraud Alerts to give continuing guidance to health care providers with respect to practices OIG finds potentially fraudulent or abusive. The Special Fraud Alerts encourage industry compliance by giving providers guidance that can be applied to their own practices. OIG Special Fraud Alerts are intended for extensive distribution directly to the health care provider community, as well as to those charged with administering the Federal health care programs.
In developing these Special Fraud Alerts, OIG has relied on a number of sources and has consulted directly with experts in the subject field, including those within OIG, other agencies of the Department, other Federal and State agencies, and those in the health care industry.
C. Section 205 of Public Law 104191
Section 205 of Public Law 104191 requires the Department to develop and publish an annual notice in the Federal Register formally soliciting proposals for modifying existing safe harbors to the anti kickback statute and for developing new safe harbors and Special Fraud Alerts.
In developing safe harbors for a criminal statute, OIG is required
to engage in a thorough review of the range of factual circumstances
that may fall within the proposed safe harbor subject area so as to
uncover potential opportunities for fraud and abuse. Only then can OIG
determine, in consultation with the Department of Justice, whether it
can effectively develop regulatory limitations and controls that will
permit beneficial and innocuous arrangements within a subject area
while, at the same time, protecting the Federal health care programs and their beneficiaries from abusive practices.
II. Solicitation of Additional New Recommendations and Proposals
In accordance with the requirements of section 205 of Public Law
104191, OIG last published a Federal Register solicitation notice for
developing new safe harbors and Special Fraud Alerts on December 11,
2006 (71 FR 71501). As required under section 205, a status report of
the public comments received in response to that notice is set forth in
Appendix D to the OIG's Semiannual Report covering the period April 1,
2007, through September 30, 2007.\1\ OIG is not seeking additional
public comment on the proposals listed in Appendix D at this time.
Rather, this notice seeks additional recommendations regarding the
development of proposed or modified safe harbor regulations and new
Special Fraud Alerts beyond those summarized in Appendix D to the OIG Semiannual Report referenced above.
\1\ The OIG Semiannual Report can be accessed through the OIG
web site at http://oig.hhs.gov/publications/semiannual.html.
A. Criteria for Modifying and Establishing Safe Harbor Provisions
In accordance with section 205 of HIPAA, we will consider a number
of factors in reviewing proposals for new or modified safe harbor
provisions, such as the extent to which the proposals would affect an increase or decrease in
In addition, we will also take into consideration other factors, including, for example, the existence (or nonexistence) of any potential financial benefit to health care professionals or providers that may take into account their decisions whether to (1) order a health care item or service or (2) arrange for a referral of health care items or services to a particular practitioner or provider. B. Criteria for Developing Special Fraud Alerts
In determining whether to issue additional Special Fraud Alerts, we will also consider whether, and to what extent, the practices that would be identified in a new Special Fraud Alert may result in any of the consequences set forth above, as well as the volume and frequency of the conduct that would be identified in the Special Fraud Alert.
A detailed explanation of justifications for, or empirical data
supporting, a suggestion for a safe harbor or Special Fraud Alert would
be helpful and should, if possible, be included in any response to this solicitation.
Daniel R. Levinson,
Inspector General.
[FR Doc. E724579 Filed 121807; 8:45 am]
BILLING CODE 415004P
FOR FURTHER INFORMATION CONTACT
Joel Schaer, (202) 619-0089, OIG Regulations Officer.