[Federal Register Volume 62, Number 33 (Wednesday, February 19, 1997)]
[Rules and Regulations]
[Pages 7350-7360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4086]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of Inspector General
42 CFR Part 1008
RIN 0991-AA85
Medicare and State Health Care Programs: Fraud and Abuse;
Issuance of Advisory Opinions by the OIG
AGENCY: Office of Inspector General (OIG), HHS
ACTION: Interim final rule with comment period.
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SUMMARY: In accordance with section 205 of the Health Insurance
Portability and Accountability Act of 1996, this final rule establishes
a new part 1008 in 42 CFR chapter V to address the new OIG advisory
opinion process. Specifically, these regulations set forth the specific
procedures by which the Office of Inspector General, in consultation
with the Department of Justice, will issue advisory opinions to outside
parties regarding the interpretation and applicability of certain
statutes relating to the Medicare and State health care programs.
DATES: Effective Date: This rule is effective on February 21, 1997.
Comment Period: To assure consideration, public comments must be
delivered to the first address provided under ADDRESSES by no later
than 5 p.m. on April 21, 1997. Comments will be available for public
inspection March 5, 1997 at the second address provided under ADDRESSES
on Monday through Friday of each week from 8:00 a.m. to 4:30 p.m.,
(202) 619-0089.
ADDRESSES: Please mail or deliver your written comments to the
following address: Office of Inspector General, Department of Health
and Human Services, Attention: OIG-10-IFC, Room 5246, Cohen Building,
330 Independence Avenue, SW., Washington, DC 20201.
Because of staffing and resource limitations, we cannot accept
comments by facsimile (FAX) transmission. In commenting, please refer
to file code OIG-10-IFC.
FOR FURTHER INFORMATION CONTACT: Joel Schaer, (202) 619-0089, OIG
Regulations Officer.
SUPPLEMENTARY INFORMATION:
I. Background
A. The Medicare Anti-Kickback Statute
Section 1128B(b) of the Social Security Act (42 U.S.C. 1320a-7b(b))
provides criminal penalties for individuals or entities that knowingly
and willfully offer, pay, solicit or receive remuneration in order to
induce business reimbursed under the Medicare or State 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.
This provision is quite broad. The types of remuneration covered
specifically include kickbacks, bribes, and rebates, whether made
directly or indirectly, overtly or covertly, or in cash or in kind. In
addition, prohibited conduct includes not only remuneration intended to
induce referrals of patients, but remuneration intended to induce the
purchasing, leasing, ordering, or arranging for any good, facility,
service, or item paid for by Medicare or State health care programs.
Since the statute on its face is so broad, concern has been
expressed for many years that some relatively innocuous commercial
arrangements are technically covered by the statute and are, therefore,
subject to criminal prosecution.
B. Safe Harbors and Fraud Alerts
As a response to the above concern, the Medicare and Medicaid
Patient and Program Protection Act of 1987, Public Law 100-93,
specifically required the development and promulgation of regulations,
the so-called ``safe harbor'' provisions, designed to specify various
payment and business practices which, although potentially capable of
inducing referrals of business under the Medicare and State health care
programs, would not be treated as criminal offenses under the anti-
kickback statute (section 1128B(b) of the Social Security Act; 42
U.S.C. 1320b(b)) and would not serve as a basis for a program exclusion
under section 1128(b)(7) of the Social Security Act; 42 U.S.C. 1320a-
7(b)(7).
The OIG safe harbor provisions have been developed to permit
individuals and entities to freely engage in business practices and
arrangements that encourage competition, innovation and economy. Health
care providers and others may voluntarily seek to comply with these
provisions so that they have the assurance that their business
practices are not subject to any enforcement action under the anti-
kickback statute or program exclusion authority. The 13 final safe
harbor provisions, which specify practices which are expressly made
legal, are codified at 42 CFR 1001.952.
In addition, the OIG has also periodically issued Special Fraud
Alerts to give continuing guidance to health care providers with
respect to practices the OIG regards as unlawful. Eight individual
Special Fraud Alerts were published in the Federal Register on December
19, 1994 (59 FR 65372), August 10, 1995 (60 FR 40847) and June 17, 1996
(61 FR 30623). Thus, for many years the OIG has been publishing
substantial guidance indicating what practices are lawful and what
practices the OIG considers unlawful under the anti-kickback statute.
C. Advisory Opinions: Section 205 of Public Law 104-191
The Health Insurance Portability and Accountability Act of 1996,
Public Law 104-191, effective August 21, 1996, now requires the
Department to provide additional formal guidance regarding the
application of the anti-kickback statute and the safe harbor
provisions, as well as other OIG health care fraud and abuse sanctions.
Among the provisions set forth in section 205 of Public Law 104-191 is
the requirement that the Department, in consultation with the
Department of Justice (DoJ), issue written advisory opinions to
particular parties with regard to: (1) What constitutes prohibited
remuneration under the anti-kickback statute; (2) whether an
arrangement or proposed arrangement satisfies the criteria in section
1128B(b)(3) of the Social Security Act, or established by regulation,
for activities which do not result in prohibited remuneration; (3) what
constitutes an inducement to
[[Page 7351]]
reduce or limit services under section 1128A(b) of the Act to Medicare
or Medicaid program beneficiaries 1; and (4) whether an activity
or proposed activity constitutes grounds for the imposition of civil or
criminal sanctions under sections 1128, 1128A or 1128B of the Act.
Thus, advisory opinions will be issued with regard to the provisions
authorizing the Department to exclude individuals and entities from
participation in Medicare and the State health care programs. Section
1128 of the Act authorizes exclusion in a wide variety of
circumstances, for example, conviction of health care related offenses,
State licensure action, and submission of claims in excess of usual
charges or for services which fail to meet professionally recognized
standards of health care. Similarly, the civil money penalty provisions
of section 1128A of the Act authorize penalties and exclusion for a
variety of acts, for example, presentation of a Medicare or Medicaid
claim that is false or fraudulent, and hospital payments to physicians
to induce the physician to reduce or limit care to any Medicare or
Medicaid beneficiary under the physician's direct care. The Department
will also provide advisory opinions regarding the criminal provisions
of section 1128B of the Act which includes the anti-kickback statute.
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\1\ Public Law 104-191 cited this provision as section 1128B(b)
of the Act. We believe the correct reference is section 1128A(b).
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(On December 31, 1996, the OIG, in accordance with section 205 of
HIPAA, published a notice in the Federal Register (61 FR 69060) that
solicited proposals and recommendations for developing new and
modifying existing safe harbor provisions under the Medicare and State
health care programs' anti-kickback statute, as well as for developing
new OIG Special Fraud Alerts. We specifically indicated in that notice
our intention of publishing separate rulemaking addressing the
procedures and process for accepting and issuing advisory opinions and
soliciting public comments and recommendations in this area.)
In accordance with the statute, requests for advisory opinions must
be accepted for agency review on or after February 21, 1997. While the
President's fiscal year 1998 budget submission proposes a repeal of
section 205, the OIG and the Department are proceeding to implement
these statutory obligations in accordance with existing law.
D. Waiver of Proposed Rulemaking
In developing and publishing these regulations as an interim final
rule, the Secretary has determined that for good cause it is both
impracticable and contrary to public interest to first issue these
regulations in proposed rulemaking form. We believe that the statutory
requirement that final regulations addressing the advisory opinion
process be in effect no later than February 17, 1997, makes it
impracticable to develop such procedures with the necessary inter-
governmental collaboration and initial public comment usually required
in such rulemaking by the statutory deadline.
In addition, we believe that it is imperative that we have in place
specific procedures by February 21, 1997, to address the receipt and
processing of advisory opinion requests. It would be against the public
interest to proceed to receive and process advisory opinions without
setting forth procedural guidance. However, we believe that the 60-day
period for public comments being set forth in this interim final rule
will serve to protect the public's interest in this rulemaking process
by allowing for an opportunity for additional input and
recommendations, without unduly delaying the intent of these
regulations. We will respond to all appropriate and relevant public
comments received during the 60-day comment period, and make any
necessary revisions to these regulations through a revised final rule
to be issued, if possible, within 9 months of the close of the comment
period. Accordingly, we believe this interim final rule approach will
achieve the dual purpose of issuing a rulemaking consistent with
statutory time frames while soliciting and benefiting from the public
comment process.
II. Provisions of the Interim Final Rule
Anti-kickback Statute Advisory Opinions: ``Case specific'' Safe Harbors
These interim final regulations establish a new 42 CFR part 1008
that is designed to establish procedures for advisory opinions that
will provide the public with meaningful advice regarding the anti-
kickback and other OIG sanction statutes regarding specific factual
situations. With respect to the anti-kickback statute, these procedures
contemplate particularized or ``case specific'' safe harbors. In
establishing the regulatory safe harbors inSec. 1001.952, the OIG first
considered the full scope of factual circumstances potentially subject
to the anti-kickback statute, that is, generally all types of
arrangements that could potentially involve an intentional payment of
remuneration to induce the referral of Medicare business. Next, we
proceeded to ``limit the reach of the statute somewhat by permitting
certain non-abusive arrangements, while encouraging beneficial or
innocuous arrangements.'' (56 FR 35952, July 29, 1991). Thus we sought
to specify particular safe harbors that, despite the potentially
unlawful intent, would protect non-abusive relationships. To accomplish
this objective, each safe harbor contains limitations and controls that
provide adequate assurance that the programs will not be abused. The
actual intent of the parties is entirely irrelevant to this analysis.
The OIG has designed 13 final safe harbors that describe practices that
are sheltered from liability, even though unlawful intent may be
present, and is continuing to finalize 8 additional safe harbor
provisions.
The OIG views the advisory opinion process with a means of analysis
similar to the safe harbor provisions, with one major exception. Where
the safe harbors describe generalized, hypothetical arrangements which
are protected, we view an advisory opinion as a means of relating the
anti-kickback statute to the particular facts of a specific
arrangement. There are likely to be factors that make some specific
arrangements appropriate for a favorable advisory opinion, even in
subject matter areas where a generalized safe harbor may be
impractical. Thus, we believe that particularized or ``case specific''
safe harbor treatment is appropriate where the specific arrangement
contains limitations, requirements or controls that give adequate
assurance that Federal health care programs can not be abused.
These regulations are designed to avoid the potential pitfalls of
advisory opinions on intent-based statutes, such as the anti-kickback
statute. First, it is not practical for the agency to make an
independent determination of the subjective intent of the parties based
only upon written materials submitted by the requestor. While
requestors are required to submit a complete written description of the
transaction, along with copies of the documents that establish the
arrangements in question, these materials do not afford a satisfactory
basis upon which to make a reliable determination of subjective intent.
In anti-kickback cases, the intent issue is whether one purpose of the
remuneration in question is intended to induce the referral of Federal
program business. In anti-kickback cases under investigation, the
determination of this
[[Page 7352]]
issue requires substantial independent investigation of all facts and
circumstances surrounding the transaction, usually including extensive
interviews. It is most unlikely that written materials prepared by the
requestor could encompass all the information necessary to enable the
OIG to make a reliable determination of the subjective intent of the
parties.
The second potential pitfall is that advisory opinions are capable
of being misused by persons not a party to the transaction in question
in order to inappropriately escape liability. While the safe harbors
are intended to create exemptions that apply generally, advisory
opinions are intended to address the facts of a particular arrangement.
A third party may implement an arrangement that appears similar to the
arrangement described in the advisory opinion, but the third party may
introduce additional factors that may make a difference in the outcome
of an advisory opinion. Thus, advisory opinions are binding upon and
may legally be relied upon only by the requestor(s).
We believe that these regulations provide for meaningful guidance
to the public on the statutes for which advisory opinions are
authorized, while avoiding the potential pitfalls described above.
As set forth, these interim final regulations have been developed
primarily to address: (1) The procedures to be followed by a party
applying for advisory opinions; (2) the procedures to be followed by
the OIG in responding to these requests; (3) the time frames under
which the OIG will receive and respond to requests for advisory
opinions; (4) the type and amount of fees to be charged to the party
requesting an advisory opinion; and (5) the manner in which the general
public will be informed of the issuance of any advisory opinions by the
OIG.
These regulations do not address the substance or the content of
advisory opinions by the OIG.
Responsibilities of Outside Parties Seeking Advisory Opinions
Any individual or entity may submit a request for an advisory
opinion. However, since we anticipate that most requests will apply to
health care business arrangements, for purposes of this discussion, we
will generally use the term ``arrangement'' to refer to the factual
circumstances under which an advisory opinion is requested, even though
we realize that some requests will involve facts that are not related
to a business arrangement.
As indicated above, the advisory opinion process is designed to
provide authoritative guidance to participants in particular
arrangements. Therefore, the regulations indicate that the arrangement
in question must either be in existence at the time of the request for
an advisory opinion, or with respect to prospective arrangements, there
must be a good faith intention to enter into the described arrangement
in the near future. (With respect to prospective conduct, we are
stating that the requestor can declare the intention to enter into the
arrangement contingent on the receipt of a favorable advisory opinion.)
We do not believe that it is appropriate to provide advisory
opinions to persons not involved in the arrangement in question. For
example, we believe that a description of a competitor's arrangement is
not the proper subject of an OIG advisory opinion since the
participants to the particular transaction would not be involved in the
request. A party to an actual arrangement--either existing or about to
be entered into--is in a position to provide full and complete
information regarding the facts in question. By contrast, third parties
are not in a position to provide a reliable statement as to the facts
of a particular arrangement in which the third party is not a
participant. In addition, it is unclear who would be bound by an
advisory opinion on an arrangement not involving the requestor.
Similarly, we do not believe it is appropriate to provide advisory
opinions on hypothetical or generalized arrangements for several
reasons. First, the anti-kickback statute and the other OIG sanction
statutes impose liability with respect to acts by specific people in
particular factual circumstances, i.e., the context in which
prosecutive decisions are made. Anti-kickback cases are almost never
alike in all material respects. In addition, especially with intent-
based statutes like the anti-kickback statute, it is often not possible
to determine that a particular general practice is invariably good or
bad. An arrangement may be legal under the anti-kickback statute with
respect to one party, but not with respect to a second party. Such
differing results can be a function of the different intentions of the
two parties, or a function of the introduction by a party of additional
factors that would make a material difference in the resulting opinion.
We believe it would not be possible for an advisory opinion reliably to
identify all the possible hypothetical factors that might lead to
different results.
Moreover, the OIG already has in place a process for offering
guidance on the application of the OIG's legal authorities to
hypothetical or generalized factual circumstances--the safe harbor
provisions and Special Fraud Alerts. As indicated above, the OIG has
promulgated 13 final safe harbor provisions in Sec. 1001.952, and has
proposed several others specifying generalized payment practices that
will not be subject to sanction under the Medicare and Medicaid anti-
kickback statute. Members of the public may also now under section
1128D(a) of the Act submit proposals for additional safe harbor
regulations to the OIG. Further, in accordance with section 1128D(c) of
the Act, if a member of the public is aware of a practice that may be
suspect or of particular concern under Medicare or a State health care
program, they may request the OIG to issue a Special Fraud Alert
regarding the practice.
Requestors who are not individuals are required to disclose certain
ownership and control information, so that the appropriate checks can
be made to ensure that the matter which is the subject of the advisory
opinion request is not under current investigation.
Initiating the Process for an Advisory Opinion
To initiate the advisory opinion process, we are indicating in part
1008 that the requestor must submit a written request for an advisory
opinion. The request must clearly and thoroughly present a complete
description of the facts for which an advisory opinion is being
requested. To the extent that the subject matter of the request is the
requestor's potential liability under one sanction authority, we
believe the request should provide a complete description of the facts
addressing the elements of that authority. Under these interim final
regulations, if the request asks the OIG to advise on whether an
arrangement is subject to sanction under more than one legal authority,
we believe the submission should include a complete description of the
facts regarding the different sanction authorities in those statutes.
To the extent that the necessary information is provided in a clear and
orderly manner, the OIG will be better able to process the request.
The regulations are requiring any submission to include copies of
all relevant documents, such as contracts, leases, employment
agreements and court documents, as well as descriptions of any other
understandings that may affect the documents. In addition, the
submission should include a narrative description of the arrangement.
As
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indicated in Sec. 1008.36, in making the request, the identities
(including names and addresses) of the requestor and all other actual
and potential parties, to the extent known to the requestor to the
arrangement that is the subject of the request to the advisory opinion
must be included. In addition, the requestor must identify a designated
contact person who will be available to communicate with the OIG.
We are requesting comments on the certification process being
adopted. Under these regulations at this point we are requiring two
certifications to be made in a request for an advisory opinion. The
certifications must be signed by the individual (if an individual
requestor), the Chief Executive Officer, or comparable officer of the
company (if a corporate requestor), or the managing partner (if a
partnership is the requestor). The responsible individual must certify
that all of the information provided is true and correct, and
constitutes a complete description of the facts regarding which an
advisory opinion is sought, to the best of the knowledge of the
requestor. Where the request relates to prospective conduct, the
regulations state that the request must also include a certification
that the requestor intends in good faith to enter into the arrangement
described in the request. This certification may be made contingent
upon receipt of a favorable advisory opinion.
Under these interim final regulations, while all submissions should
include the above information, because of the wide variety of
activities upon which the OIG must issue advisory opinions, we cannot
detail at this point all of the information a requestor must provide.
We are requesting public comment and input on the type of information
to be provided by the requesting party and will address this point
further in any revised final rulemaking. In the interim, prior to
submitting a request for an advisory opinion, the requestor is advised
to contact the OIG to inquire about the information needed by the OIG
to process a request of the type the requestor intends to submit.
Inquiries should be made in writing and sent to the Office of Inspector
General, Office of Counsel to the Inspector General, Industry Guidance
Branch, Room 5246 Cohen Building, 330 Independence Avenue, S.W.,
Washington, D.C. 20201. (Any changes to this address regarding
inquiries will be posted on the OIG home page at http://www.sba.gov/
ignet/internal/hhs/hhs.html.) The OIG may, depending on the subject
matter of the inquiry, provide the requestor with preliminary questions
designated to elicit the factual information necessary to facilitate an
OIG response to the request. These questions should be (but are not
required to be) answered in the request for an advisory opinion.
If the information needed by the OIG is in the preliminary
submission, we will be better able to render a prompt, concise and
appropriate advisory opinion. We welcome comments on this approach.
Fees Charged to Requesting Parties
Section 1128D(b)(5)(B)(ii) of the Act requires that requestors be
charged a fee equal to the costs incurred by the Department in
responding to the request. The fee must be paid into the general fund
of the U.S. Treasury.
Section 1008.31 of these regulations indicates that the actual
costs of responding to requests for advisory opinions will factor in
the salary, benefits and overhead costs of attorneys and others who
will work on analyzing requests and writing advisory opinions from
requesting parties. In light of the breadth of subject matter and
possible range of complexities for advisory opinion requests, we do not
believe it is possible to calculate or accurately estimate the actual
cost of providing an advisory opinion in advance. Indeed, we believe
that the statute requires us to calculate the actual costs incurred
during the processing of a specific request and charge the requestor
for that amount. As set forth in these regulations, at the conclusion
of the advisory opinion process, when either the opinion has been
issued or the request has been withdrawn, the requestor is responsible
for paying the U.S. Treasury an amount equal to the costs incurred by
the Government in responding to the request.
Although we cannot reliably project the processing costs in
advance, we can make broad estimates that may be of use to prospective
requestors. We estimate that the actual cost of processing requests,
including salaries, benefits and overhead, will be near $100 per hour.
We must include the time of staff attorneys, supervisors and support
staff, as well as others who are consulted on various issues. The
processing time will vary according to the complexity of the request
and the quality of the submission. Simple requests, for example,
regarding whether a certain court action is a conviction for the
purposes of exclusion in accordance with section 1128 of the Act may
take approximately 3 hours to analyze and produce a written opinion. On
the other hand, requests involving the application of the anti-kickback
statute to large, multiple party, intricate business deals may take in
excess of 40 hours or more to fully analyze and produce a written
advisory opinion.
We believe that it is reasonable to expect that requests for an
advisory opinion will cost at least $250 in initial processing. Every
request for an advisory opinion will take time to read and analyze for
the OIG to ensure that it has an accurate understanding of all material
facts submitted. Following that initial analysis, the OIG is required
to consult with the DoJ and write the actual advisory opinion. By its
very nature, most of this work will need to be done by the OIG staff
attorneys. Accordingly, the regulations are providing for a non-
refundable payment of $250 that is to accompany the request for an
advisory opinion. Once we have gained experience in the time and staff
resources involved in this process, a clearer estimate may need to be
made and a re-calculation set forth.
Because we do not believe that we can accurately estimate our costs
in advance for a particular request, we are attempting to accommodate
requestors who may want to limit the costs of receiving an advisory
opinion. The regulations provide that a requestor may designate a
``triggering dollar amount'' in their request for an advisory opinion.
If the OIG calculates that the cost of processing the request has
reached, or is likely to exceed, that triggering amount, the OIG will
stop processing the request and promptly notify the requestor. The
requestor may then decide to either authorize continued processing or
withdraw the request for an advisory opinion. While the OIG intends to
be able to more accurately reflect such costs in advance as experience
is gained, this triggering mechanism approach should ensure that
requestors do not pay costs far in excess of what they expect to incur
by their request.
Section 1008.39 of the regulations specifically indicates that
while a requestor may withdraw a request for an advisory opinion at any
time, he or she will be responsible for any costs incurred in
processing the request prior to its withdrawal.
When the advisory opinion has been completed as discussed below, or
the request has been withdrawn, the OIG will calculate the total costs
incurred in processing the request after taking into account any
previous payments, such as the initial $250 fee, associated with the
request, and the OIG will then notify the requestor of the amount owed.
Once the requestor has paid the full amount owed for the cost of
processing the request as required by statute, the OIG will release the
advisory opinion to the requestor.
While the OIG believes the above approach for payment and release
will
[[Page 7354]]
be sufficient for the vast majority of requests for advisory opinions,
an additional procedure will be necessary in those cases where the
request requires expert advice on non-legal matters. The OIG is
particularly concerned about requests for advisory opinions requiring
review by medical experts. For example, section 1128(b)(6)(B) of the
Act authorizes the OIG to exclude any individual or entity who has
furnished services to patients ``substantially in excess of the needs
of such patients or of a quality which fails to meet professionally
recognized standards of health care.'' In order to determine whether a
given factual scenario would form the basis for a sanction under this
authority, as stated in Sec. 1008.33 of these regulations, the OIG may
make a determination that extensive medical as well as legal analysis
is required, and that the medical analysis should be referred to a Peer
Review Organization or other entity capable of providing and issuing
medical reviews.
Because of the time and expense of such expert reviews, we believe
that a request that requires such outside consultation should be
treated differently from a standard request involving the application
of the governing law to a given set of facts. When the OIG determines
that an expert non-legal opinion is required, we will obtain an
estimate for the costs of such an opinion and provide the requestor
with that estimate. The requestor may then decide whether to pay the
estimated cost of the expert review or withdraw the request. If the
requestor pays the estimated cost, the OIG will promptly refer the
matter to the expert for such review. Once the OIG receives the medical
or other review from the outside expert, the advisory opinion process
will continue with the OIG applying the expert evaluation to the legal
question(s) at issue.
Responsibilities of the OIG in Reviewing the Advisory Opinion Requests
Subpart E of part 1008 discusses the obligations and
responsibilities of the OIG in answering requests for advisory
opinions. As set forth in these regulations, once the OIG receives a
request for an advisory opinion, we will promptly examine it to
determine if it appears to contain sufficient information to form the
basis for an informed advisory opinion. Generally speaking, the request
must contain responses to the preliminary questions posed by the OIG,
as discussed above. If the request does not appear sufficient, we will
promptly notify the requestor what additional information is required.
Conversely, if the request appears to be sufficient, we will accept the
request. In all cases, we will either request additional information or
accept the request within 10 working days after receiving the request.
If we have requested additional information and the requestor resubmits
the advisory opinion request, we will assess within 10 working days the
resubmission to determine whether it can be accepted or whether we
still need further information. At the point when the OIG accepts the
request, we will notify the requestor by U.S. mail of the date of
acceptance.
We believe that this approach allows the OIG a reasonable amount of
time to identify requests that do not contain information sufficient
for the OIG to process the request. While we are limiting the time
period of this initial assessment to ensure that facially complete
requests are promptly processed, we are soliciting public comment on
the appropriateness of this method of screening requests for advisory
opinions prior to their acceptance.
Notwithstanding the acceptance of a request, the OIG reserves the
right to later determine that it needs additional information. If we
decide such additional information is necessary, we will notify the
requestor in the same manner as we did prior to acceptance. The time
period between when we notify the requestor about the additional
information we need and when we receive the requested information will
not be counted in considering the time for issuance of an opinion.
Because of the fact-intensive inquiry that will be necessary to
render most advisory opinions, the OIG anticipates that there may be a
need to request additional information from many requestors. In
responding, the requestor should provide the OIG with the necessary
information and accompany that submission with a certification from the
same individual (or one in the same position) who certified the
original request for an advisory opinion.
As required by section 1128D(b)(5)(B) of the Act and set forth in
Sec. 1008.43, the OIG will issue an advisory opinion within 60 days
after the request for the opinion is accepted. Once the OIG receives a
request for an opinion that appears to meet the submission criteria,
the request for an opinion will be promptly accepted and the 60-day
time period for issuance of an opinion will commence. The OIG will send
the advisory opinion to the requestor by regular U.S. mail at the
conclusion of the 60-day time period and once all required fees have
been paid.
We believe that under certain circumstances the running of the 60-
day time limit for issuing an opinion should be tolled. The tolling
periods will only reflect time when the OIG cannot work on analyzing
the request. If the OIG notifies the requestor that the costs have
reached, or are likely to exceed, the triggering amount designated by
that requestor, the OIG will stop processing the request until the
requestor instructs the OIG to continue. Similarly, if the OIG notifies
a requestor of the need for, and estimated cost of, an outside expert
opinion on a non-legal issue, the regulations state that the OIG will
stop processing the request until the requestor pays the estimated cost
and the outside expert provides its opinion. Likewise, in those
instances when the OIG requests additional information from the
requestor that the OIG believes is necessary to issue the advisory
opinion, the OIG will stop processing the opinion until the additional
information is provided. The time that elapses during these periods
when the OIG is not processing the request will not be counted as part
of the 60-day period.
The time period for issuing an advisory opinion does not include
the time after the OIG notifies the requestor that the advisory opinion
is completed and the requestor must pay the full balance due for the
cost of the opinion.
While the OIG intends to issue advisory opinions within 60 days of
the receipt of the request, we do not believe that the 60-day time
period should include delays in the processing of the request that are
not within the control of the OIG. With the exception of the delay
while waiting for a needed outside expert opinion, all of the possible
tolling events are under the exclusive control of the requestor, and as
such, since for what we believe will be the vast majority of advisory
opinion requests, the 60-day period will only be tolled for those
periods during which the requestor has not paid a required fee or has
not provided information necessary to the processing of the request.
As required by section 1128D(b)(1) of the Act, the OIG will consult
with DoJ when responding to requests for advisory opinions, and will
issue an advisory opinion to the requestor after considering the
complete description of all facts provided to it by the requestor. The
opinion will restate the material facts known to the OIG and discuss
the OIG's analysis and conclusion regarding the legal question(s) to be
applied to the facts presented.
[[Page 7355]]
Dissemination of Advisory Opinions
Section 1128D(b)(5)(A)(v) requires these regulations to describe
the manner in which advisory opinions will be made available to the
public. As set forth in subpart E of these regulations, once the OIG
issues an advisory opinion to a requestor, the OIG will promptly make a
copy of that opinion available for public inspection at the OIG
headquarters and the DHHS/OIG web site. We also anticipate that
advisory opinions will likely be made widely available to interested
members of the public through commercial publishers and trade groups.
Public comments and additional suggestions regarding the dissemination
of advisory opinions to the public will be welcomed.
Documents submitted to the OIG related to requested advisory
opinions, and internal government documents related to such opinions,
will be available to the extent authorized by the Freedom of
Information Act (FOIA) (5 U.S.C. 552). To the extent that a requestor
provides information it believes is not subject to disclosure under
FOIA, such as items that the requestor believes are trade secrets or
privileged and confidential commercial or financial information, the
requestor should identify such information in the manner described in
45 CFR 5.65 (c) and (d). The requestor's assertions about the nature of
information, however, are not controlling.
In addition, although a document may be exempt from disclosure
under FOIA, facts reflected on that document may become part of the
advisory opinion that will be provided to the public. The material
facts of the arrangement in question will be described in the body of
each advisory opinion, all of which will be fully available to the
public.
Rescission of an Advisory Opinion
Section 1008.45 of the regulations addresses the rescission of an
advisory opinion by the OIG. The regulations reserve the right of the
OIG to rescind an advisory opinion after its issuance in limited
circumstances, such as when the OIG learns after the issuance of the
opinion that the arrangement in question may lead to fraud and abuse.
In such an instance, the OIG will notify the requestor of the
rescission and make such notice available to the same extent as an
advisory opinion. Unless the OIG establishes that the requestor failed
to provide material information in its submissions to the OIG, the
requestor would not be subject to OIG sanction for actions it took
prior to the notice of rescission if the requestor acted in good faith
reliance on the advisory opinion. We are specifically soliciting
comments on whether this approach reasonably balances the Government's
need to ensure that advisory opinions are legally correct and the
requestor's interest in finality.
Scope and Effect of Advisory Opinions
Subpart F of part 1008 of these regulations addresses the scope and
effect of advisory opinions. An advisory opinion issued under this
process is legally binding on the Department (including the OIG) and
the requestor, but only with respect to the specific conduct of the
particular requestor. In other words, in accordance with section
1128D(b)(4)(A) of the Act with respect to the issuance of advisory
opinions, the Department is not legally bound with respect to the
conduct of third parties, even if the conduct of that party appears
similar to the requestor. We believe that no third parties are bound
nor may they rely on an advisory opinion since each advisory opinion
will apply legal standards to a set of facts involving certain known
persons who provide specific statements about key factual issues. A
third party may implement a look-alike arrangement with additional
characteristics that would lead to an unfavorable opinion. Therefore,
by their very nature, advisory opinions, unlike the safe harbor
regulations, cannot be applied generally.
We believe the receipt of an advisory opinion regarding a certain
arrangement does not totally prevent the Government from commencing an
action against a party to the arrangement where, for example, a
requestor failed to disclose a material fact. In any such action under
sections 1128, 1128A or 1128B of the Act, an individual or entity who
has requested and received an advisory opinion from the OIG regarding
the arrangement in question may seek to introduce the advisory opinion
into evidence in the proceeding. We believe that the court must then
determine whether the requestor of the advisory opinion was justified
in relying on the opinion. This determination must be made by examining
all relevant circumstances, including whether the requestor fully and
accurately described the arrangement in its submissions to the OIG.
III. Regulatory Impact Analysis
Executive Order 12866
The Office of Management and Budget (OMB) has reviewed this interim
final rule in accordance with the provisions of Executive Order 12866.
Executive Order 12866 directs agencies to assess all costs and benefits
of available regulatory alternatives and, when rulemaking is necessary,
to select regulatory approaches that maximize net benefits (including
potential economic, environmental, public health, safety, distributive,
and equity effects).
As indicated in section II of this preamble, this rule deals
primarily with the procedural issues involved in the receipt, review
and response to requests for advisory opinions by the OIG. It sets up
the procedures as required by Public Law 104-191, for obtaining an
advisory opinion on whether or not certain activities violate
designated fraud and abuse authorities. This rule does not address the
substance of the anti-kickback or other sanction statutes. It does not
address the substance or content of advisory opinions which may be
issued in the future. To the extent that advisory opinions affect the
behavior of health care providers, that effect is the product of the
substantive content of the sanction statutes themselves, and the
substantive content of the advisory opinions which will be issued on a
case-by-case basis in the future. The effect of advisory opinions on
health care providers is not a function of the process for requesting
an advisory opinion.
In addition, the extent to which advisory opinions will result in
alteration of future business practices, if any, is impossible to
analyze without experience. It would be completely speculative to try
to divine to what degree business deals may or may not occur as a
result of the substance of advisory opinions issued in the future.
Moreover, we have no way of knowing in advance what the volume of
requests for advisory opinions will be. However, we estimate that we
will receive approximately 500 requests per year that will generally
require between 3 and 40 hours each to process. Accordingly, it would
likely cost in the range of $150,000 to $2,000,000 per year to issue
advisory opinions.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), if a rule
has a significant economic effect on a substantial number of small
businesses the Secretary must specifically consider the effects of a
rule on small business entities and analyze regulatory options that
could lessen the impact of the rule. As stated above, this rule does
not address the substance of the fraud and abuse statutes or the
substance of advisory opinions which may be issued in the future. It
describes the process by which an individual or entity may receive an
opinion as to the application of these statutes to particular business
[[Page 7356]]
practices. The aggregate economic impact of this rulemaking on small
business entities should, therefore, be minimal.
There will, however, be costs involved in filing requests for
opinions by OIG. Those costs will vary depending on the complexity of
the request. Compared to the costs of seeking private legal advice, it
would appear that fees charged for the OIG's review would not be
substantial. Furthermore, the requirement that applicants pay cost-
based fees for advisory opinions is not a product of this rulemaking:
It is prescribed by statute that such fees be paid by those requesting
advisory opinions. This rule merely lays out the procedures for such
costs to be paid. Thus, we have concluded, and the Secretary certifies,
that this final rule will not have a significant economic impact on a
substantial number of small business entities, and that a regulatory
flexibility analysis is not required for this rulemaking.
IV. Paperwork Reduction Act
In order to provide appropriate advisory opinions, the OIG will
need certain information from the parties who request advisory
opinions. Sections 1008.18, 1008.36(b) and 1008.37 through 1008.40 of
this interim final rule contain information collection requirements
that require approval by OMB. We are required to solicit public
comments under section 3506(c)(2)(A) of the Paperwork Reduction Act of
1995. Specifically, comments are invited on (1) whether the proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information will
have practical utility; (2) the accuracy of the estimate of the burden
of the proposed collection of information; (3) ways to enhance the
quality, utility and clarity of the information collected; and (4) ways
to minimize the burden of the collection of information on respondents,
including through the use of automated collection techniques or other
forms of information technology.
We are seeking emergency OMB approval for the collection of
information contained in this rule. In a separate Federal Register
notice, containing a 60-day public comment period, we will solicit
public comment on these requirements, thereby initiating the normal
Paperwork Reduction Act clearance.
Title: OIG Advisory Opinion Procedure.
Summary of the collection of information: Section 205 of Public Law
104-191 requires the Department to provide advisory opinions to the
public regarding several categories of subject matter. The Department
must opine on requestor's potential liability under sections 1128,
1128A, and 1128B of the Act. These regulations provide the procedures
under which members of the public may request advisory opinions from
the OIG. Because all requests for advisory opinions are purely
voluntary, respondents will only be required to provide information
regarding facts about which they have decided to request an opinion
from the OIG.
In order to ensure a useful advisory opinion process, the OIG must
receive information sufficient to determine whether the arrangement in
question is subject to sanction. The information provided by the
requestor will be applied by the OIG to the legal question posed in the
request for an advisory opinion. In general, we are requiring a
complete description of all facts relevant to the inquiry, including
all related documents.
The general requirements in this rulemaking may be supplemented by
voluntary preliminary questions we have developed that correspond with
each sanction authority in sections 1128, 1128A, and 1128B of the Act
as appropriate. These more specific information collection requirements
are being made available for public review and comment by a separate
Federal Register notice. The preliminary questions will be designed to
elicit the specific information that will enable the OIG to provide the
most accurate and timely opinion possible. For example, if a request is
made for an advisory opinion on whether a given arrangement will
violate the anti-kickback statute, one question may relate specifically
to how much remuneration is paid to various parties to the arrangement.
Although requestors will be under no obligation to answer the
preliminary questions, we believe that the questions will provide
requestors with valuable guidance about what information we will need
to answer their inquiry. A request for an advisory opinion that
includes complete answers to the preliminary questions corresponding to
the issue(s) raised by the requestor should contain most, if not all,
of the information that we will require to issue an advisory opinion.
Even though we believe that the questions will aid requestors, the
answering of these questions is purely voluntary in nature and we will
process advisory opinion requests regardless of whether the preliminary
questions are answered.
The following discussion relates the aggregate effect of the
collections of information included in the text of this interim final
rule and in the preliminary questions.
Respondents: The ``respondents'' for the collection of information
described in these regulations will be self-selected individuals and
entities that choose to submit requests for advisory opinions to the
OIG. We anticipate that the respondents will include health care
providers of many types, from sole practitioner physicians to large
diversified publicly-traded corporations.
Estimated number of respondents: 500. Most individuals and entities
that provide medical services that may be paid for by Medicare,
Medicaid or Federal health care programs could potentially have
questions regarding one of the subject matters about which the OIG will
issue advisory opinions. In reality, we believe that the number of
requestors will be a small fraction of such providers.
Over the past several years, the Inspector General Division of the
Office of the General Counsel has answered telephone inquiries from
individuals and entities seeking informal guidance with respect to the
Medicare and State health care programs' anti-kickback statute and
other sanction authorities. Many of the inquiries related to
authorities outside the scope of the advisory opinion process, that is,
the self-referral provisions of section 1877 of the Act. Furthermore,
we believe that most of the inquiries have been of a nature that the
caller would be unlikely to request a written advisory opinion on the
subject matter. Many inquiries related to relatively simple matters
that could be researched by private counsel at relatively minor
expense. Nevertheless, the rate of these telephone inquiries may form a
starting point for estimating the number of advisory opinion requests.
We estimate that we received an average of 6 telephone inquiries per
day over the past several years. Of these, we believe that an average
of two per day could potentially have been the subject of an advisory
opinion. Using that history as a rough guide, we estimate an annual
number of 500 requests. Obviously, the actual number of requests could
be larger since, for the first time, formal written opinions are
available. Conversely, the numbers could be smaller for a combination
of many unquantifiable reasons, such as the desire not to subject an
arrangement to official scrutiny.
Estimated number of responses per respondent: 1.
Estimated total annual burden on respondents: We believe that the
burden of preparing requests for advisory opinions will vary widely
because of differences in size and complexity of the
[[Page 7357]]
business transaction in question. We estimate that the average burden
for each submitted request for an advisory opinion will be in the range
of 2 to 40 hours. We further believe that the burden for most requests
will be closer to the lower end of the range, with an average burden of
10 hours per respondent. Total burden for this proposed information
collection is estimated to be 5000 hours.
We are requiring requests for advisory opinions to involve existing
conduct, or conduct in which the requestor intends to engage. We
anticipate that most requests will involve business arrangements into
which the requesting party intends to enter. Because the facts will
relate to business plans, the requesting party will have collected and
analyzed all or almost all of the information we will need to collect
to review the request. Therefore, in order to request an advisory
opinion, the requestor will most likely simply need to compile already
collected information for our examination. In some cases, however, the
requestor may need to expend a more significant amount of time in
preparing a submission related to a complex arrangement involving a
large number of parties.
In addition to the hour burden discussed above, some respondents
may incur additional costs related to the purchase of outside
professional services, such as attorneys or consultants. We believe
that the cost burden related to such outside assistance will vary from
zero to 40 hours per submission. The outside assistance cost burden
estimate is based on an estimate of 10 hours per request at $200 per
hour. Thus, the cost burden for these outside functions is estimated at
$1,000,000.
Comments on this information collection should be sent to both:
Cynthia Agens Bauer, OS Reports Clearance Officer, ASMB Budget Office,
Room 503-H, Humphrey Building, 200 Independence Avenue, S.W.,
Washington, D.C. 20201, FAX: (202) 690-6352
Allison Herron Eydt, OIG Desk Officer, Office of Management and Budget,
Room 10235, New Executive Office Building, 725 17th Street, N.W.,
Washington, D.C. 20053, FAX: (202) 395-6974.
Comments on these paperwork reduction requirements may be submitted
to the above-cited individuals within two days following the Federal
Register publication of this interim final rule.
List of Subjects in 42 CFR Part 1008
Administrative practice and procedures, Fraud, Grant programs--
health, Health facilities, Health professions, Medicaid, Medicare,
Penalties.
Accordingly, 42 CFR chapter V, subchapter B is amended by adding a
new part 1008 as set forth below:
TITLE 42--PUBLIC HEALTH
CHAPTER V--OFFICE OF INSPECTOR GENERAL--HEALTH CARE, DEPARTMENT OF
HEALTH AND HUMAN SERVICES
PART 1008--ADVISORY OPINIONS BY THE OIG
Subpart A--General Provisions
Sec.
1008.1 Basis and purpose.
1008.3 Effective period.
1008.5 Matters subject to advisory opinions.
Subpart B--Preliminary Obligations and Responsibilities of the
Requesting Party
1008.11 Who may submit a request.
1008.15 Facts subject to advisory opinions.
1008.18 Preliminary questions suggested for the requesting party.
Subpart C--Advisory Opinion Fees
1008.31 OIG fees for the cost of advisory opinions.
1008.33 Expert opinions from outside sources.
Subpart D--Submission of a Formal Request for an Advisory Opinion
1008.36 Submission of a request.
1008.37 Disclosure of ownership and related information.
1008.38 Signed certifications by the requestor.
1008.39 Additional information.
1008.40 Withdrawal.
Subpart E--Obligations and Responsibilities of the OIG
1008.41 OIG acceptance of the request.
1008.43 Issuance of a formal advisory opinion.
1008.45 Rescission.
1008.47 Disclosure.
Subpart F--Scope and Effect of OIG Advisory Opinions
1008.51 Exclusivity of OIG advisory opinions.
1008.53 Affected parties.
1008.55 Admissibility of evidence.
1008.59 Range of the advisory opinion.
Authority: 42 U.S.C. 1320a-7d(b).
Subpart A--General Provisions
Sec. 1008.1 Basis and purpose.
(a) This part contains the specific procedures for the submission
of requests by an individual or entity for advisory opinions to, and
the issuance of advisory opinions by, the OIG, in consultation with the
Department of Justice (DoJ), in accordance with section 1128D(b) of the
Social Security Act (Act), 42 U.S.C. 1320a-7d(b). The OIG will issue
such advisory opinions based on actual or proposed factual
circumstances submitted by the requesting individual or entity.
(b) An individual or entity may request an advisory opinion from
the OIG regarding on any of 5 specific subject matters described in
Sec. 1008.5 of this part.
(c) The requesting party must provide a complete description of the
facts as set forth in subpart B of this part, and pay the costs to the
OIG of processing the request for an advisory opinion as set forth in
subpart C of this part.
(d) Nothing in this part limits the investigatory or prosecutorial
authority of the OIG, DoJ or any other agency of the Government.
Sec. 1008.3 Effective period.
The provisions in this part are applicable to requests for advisory
opinions submitted on or after February 21, 1997, and before August 21,
2000, and to any requests submitted during any other time period for
which the OIG is required by law to issue advisory opinions.
Sec. 1008.5 Matters subject to advisory opinions.
(a) An individual or entity may request an advisory opinion from
the OIG regarding--
(1) What constitutes prohibited remuneration within the meaning of
section 1128B(b) of the Act;
(2) Whether an arrangement, or proposed arrangement, satisfies the
criteria set forth in section 1128B(b)(3) of the Act for activities
that do not result in prohibited remuneration;
(3) Whether an arrangement, or proposed arrangement, satisfies the
criteria set forth in Sec. 1001.952 of this chapter for activities that
do not result in prohibited remuneration;
(4) What constitutes an inducement to reduce or limit services
under section 1128A(b) of the Act to Medicare or Medicaid program
beneficiaries; and
(5) Whether any activity, or proposed activity, constitutes grounds
for the imposition of a sanction under sections 1128, 1128A or 1128B of
the Act.
(b) Exceptions. The OIG will not address through the advisory
opinion process--
(1) What the fair market value will be, or what the fair market
value was paid or received, for any goods, services or property; and
(2) Whether an individual is a bona fide employee within the
requirements of section 3121(d)(2) of the Internal Revenue Code of
1986.
[[Page 7358]]
Subpart B--Preliminary Obligations and Responsibilities of the
Requesting Party
Sec. 1008.11 Who may submit a request.
Any individual or entity may submit a request to the OIG for an
advisory opinion regarding an existing arrangement or one which the
requestor in good faith specifically plans to undertake. The requestor
must be a party to the arrangement, or proposed arrangement, that is
the subject of the request.
Sec. 1008.15 Facts subject to advisory opinions.
(a) The OIG will consider requests from a requesting party for
advisory opinions regarding the application of specific facts to the
subject matters set forth in Sec. 1008.5(a) of this part. The facts
must relate to an existing arrangement, or one which the requestor in
good faith plans to undertake. The plans may be contingent upon
receiving a favorable advisory opinion. The advisory opinion request
should contain a complete description of the arrangement that the
requestor is undertaking, or plans to undertake.
(b) Requests presenting a general question of interpretation,
posing a hypothetical situation, or regarding the activities of third
parties do not qualify as advisory opinion requests.
(c) An advisory opinion request will not be accepted when--
(1) The request is not related to a named individual or entity;
(2) The same, or substantially the same, course of action is under
investigation, or is or has been the subject of a proceeding involving
the Department of Health and Human Services or another governmental
agency; or
(3) An informed opinion cannot be made, or could be made only after
extensive investigation, clinical study, testing or collateral inquiry.
Sec. 1008.18 Preliminary questions suggested for the requesting party.
(a) The OIG may establish and maintain a set of questions
corresponding to the categories of opinion subject matter as set forth
in Sec. 1008.5(a) of this part as appropriate. The questions will be
designed to elicit specific information relevant to the advisory
opinion being sought; however, answering the questions is voluntary.
(b) Questions the OIG suggests the requestor to address may be
obtained from the OIG. Requests should be made in writing, specify the
subject matter and be sent to the headquarter offices of the OIG.
(c) When submitting a request for an advisory opinion, a requestor
may answer the questions corresponding to the subject matter for which
the opinion is requested. The extent to which any of the questions is
not fully answered may effect the content of the advisory opinion.
Subpart C--Advisory Opinion Fees
Sec. 1008.31 OIG fees for the cost of advisory opinions.
(a) Responsibility for fees. The requestor is responsible for
paying a fee equal to the costs incurred by the Department in
responding to the request for an advisory opinion.
(b) Initial payment. A request for an advisory opinion must be
accompanied by a check or money order payable to the Treasury of the
United States for $250. This initial payment is non-refundable.
(c) Calculation of costs. Prior to the issuance of the advisory
opinion, the OIG will calculate the costs to be incurred by the
Department in responding to the request. The calculation will include
the costs of salaries and benefits payable to attorneys and others who
have worked on the request in question, as well as administrative and
supervisory support for such persons. The OIG has the exclusive
authority to determine the cost of responding to a request for an
advisory opinion and such determination is not reviewable or waivable.
(d) Agreement to pay all costs. (1) By submitting the request for
an advisory opinion, the requestor agrees, except as indicated in
paragraph (d)(3) of this section, to pay all costs incurred by the OIG
in responding to the request for an advisory opinion.
(2) In its request for an advisory opinion, the requestor may
designate a triggering dollar amount. If the OIG estimates that the
costs of processing the advisory opinion request have reached or are
likely to exceed the designated triggering dollar amount, the OIG will
notify the requestor.
(3) If the OIG notifies the requestor that the estimated cost of
processing the request has reached or is likely to exceed the
triggering dollar amount, the OIG will stop processing the request
until such time as the requestor makes a written request for the OIG to
continue processing the request. Any delay in the processing of the
request for an advisory opinion attributable to these procedures will
toll the time for issuance of an advisory opinion until the requestor
asks the OIG to continue working on the request.
(4) If the requestor chooses not to pay for completion of an
advisory opinion, or withdraws the request, the requestor is still
obligated to pay for all costs incurred and identified by the OIG
attributable to processing the request for an advisory opinion up to
that point.
(5) If the costs incurred by the OIG in responding to the request
are greater than the amount paid by the requestor, the OIG will, prior
to the issuance of the advisory opinion, notify the requestor of any
additional amount due. The OIG will not issue an advisory opinion until
the full amount owed by the requestor has been paid. Once the requestor
has paid the OIG the total amount due for the costs of processing the
request, the OIG will issue the advisory opinion. The time period for
issuing advisory opinions will be tolled from the time the OIG notifies
the requestor of the amount owed until the time full payment is
received.
(e) Fees for outside experts. (1) In addition to the fees
identified in this section, the requestor also must pay any required
fees for expert opinions, if any, from outside sources, as described in
Sec. 1008.33.
(2) The time period for issuing an advisory opinion will be tolled
from the time that the OIG notifies the requestor of the need for an
outside expert opinion until the time the OIG receives the necessary
expert opinion.
Sec. 1008.33 Expert opinions from outside sources.
(a) The OIG may request expert advice from qualified sources on
non-legal issues if necessary to respond to the advisory opinion
request. For example, the OIG may require the use of appropriate
medical reviewers, such as peer review organizations, to obtain medical
opinions on specific issues.
(b) If the OIG determines that it is necessary to obtain expert
advice to issue a requested advisory opinion, the OIG will notify the
requestor of that fact and provide the identity of the appropriate
expert and an estimate of the costs of the expert advice. As indicated
in Sec. 1008.31(e), the requestor must pay the estimated cost of the
expert advice.
(c) Once payment is made for the cost of the expert advice, the OIG
will arrange for a prompt expert review of the issue or issues in
question.
Subpart D--Submission of a Formal Request for an Advisory Opinion
Sec. 1008.36 Submission of a request.
(a) A request for a formal advisory opinion must be submitted in
writing. An original and 2 copies of the request
[[Page 7359]]
should be addressed to the headquarter offices of the OIG.
(b) Each request for an advisory opinion must include--
(1) The identities, including the names and addresses, of the
requestor and of all other actual and potential parties, to the extent
known to the requestor to the arrangement that is the subject of the
request for an advisory opinion;
(2) The name, title, address, and daytime telephone number of a
contact person who will be available to discuss the request for an
advisory opinion with the OIG on behalf of the requestor;
(3) A declaration of the subject category or categories as
described in Sec. 1008.5 of this part for which the advisory opinion is
requested;
(4) A complete and specific description of all relevant information
bearing on the arrangement for which an advisory opinion is requested
and on the circumstances of the conduct,1 including--
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\1\ The requestor is under an affirmative obligation to make
full and true disclosure with respect to the facts regarding the
advisory opinion being requested.
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(i) Background information,
(ii) Complete copies of all operative documents, and
(iii) Detailed statements of all collateral or oral understandings,
if any;
(5) All Medicare and Medicaid provider numbers used by all parties
to the arrangement;
(6) Signed certifications by the requestor, as described in
Sec. 1008.37 of this part; and
(7) A check or money order payable to the Treasury of the United
States in the amount of $250, as discussed in Sec. 1008.31(b) of this
part.
Sec. 1008.37 Disclosure of ownership and related information.
Each individual or entity requesting an advisory opinion will
supply full and complete information as to the identity of each entity
owned or controlled by the indivudual, and of each person with an
ownership or control interest in the entity, as defined in section
1124(a)(1) of the Social Security Act (42 U.S.C. 1320a-3(a)(1)) and
part 420 of this chapter.
Sec. 1008.38 Signed certifications by the requestor.
(a) Every request must include the following signed certification:
``With knowledge of the penalties for false statements provided by 18
U.S.C. 1001 and with knowledge that this request for an advisory
opinion is being submitted to the Department of Health and Human
Services, I certify that all of the information provided is true and
correct, and constitutes a complete description of the facts regarding
which an advisory opinion is sought, to the best of my knowledge and
belief.''
(b) If the advisory opinion relates to a proposed arrangement, the
request must also include the following signed certification: ``The
arrangement described in this request for an advisory opinion is one
that [the requestor] in good faith plans to undertake.'' This statement
may be made contingent on a favorable OIG advisory opinion, in which
case, the phrase ``if the OIG issues a favorable advisory opinion''
should be added to the certification.
(c) The certification(s) will be signed by--
(1) The requestor, if the requestor is an individual;
(2) The chief executive officer, or comparable officer, of the
requestor, if the requestor is a corporation; or
(3) The managing partner of the requestor, if the requestor is a
partnership.
Sec. 1008.39 Additional information.
(a) If the request for an advisory opinion does not contain all of
the information required by Sec. 1008.36 of this part, or the OIG
believes it needs more information prior to rendering an advisory
opinion, the OIG may, at any time, request whatever additional
information or documents it deems necessary. The time period for the
issuance of an advisory opinion will be tolled from the time the OIG
requests the additional information from the requestor until such time
as the OIG determines that it has received the requested information.
(b) The OIG may request additional information before or after the
request for an advisory opinion has been accepted.
(c) Additional information should be provided in writing, signed by
the same person who signed the initial request and certified by this
person to be a true, correct and complete disclosure of the requested
information in a manner equivalent to that described in Sec. 1008.37 of
this part.
(d) In connection with any request for an advisory opinion, the OIG
or DoJ may conduct whatever independent investigation they believe
appropriate.
Sec. 1008.40 Withdrawal.
The requestor of an advisory opinion may withdraw the request prior
to the issuance of a formal advisory opinion by the OIG. The withdrawal
must be written and must be submitted to the same address as the
submitted request, as indicated in Secs. 1008.18(b) and 1008.36(a) of
this part. Regardless of whether the request is withdrawn, the
requestor must pay the costs expended by the OIG in processing the
opinion, as discussed in Sec. 1008.31(d) of this part. The OIG reserves
the right to retain any request for an advisory opinion, documents and
information submitted to it under these procedures, and to use them for
any governmental purposes.
Subpart E--Obligations and Responsibilities of the OIG
Sec. 1008.41 OIG acceptance of the request.
(a) Upon receipt of a request for an advisory opinion, the OIG will
promptly make an initial determination of whether the submission
includes all of the information the OIG will require to process the
request.
(b) Within 10 working days of receipt of the request, the OIG
will--
(1) Formally accept the request for an advisory opinion,
(2) Notify the requestor of what additional information is needed,
or
(3) Decline to formally accept the request.
(c) If the requestor provides the additional information requested,
or otherwise resubmits the request, the OIG will process the
resubmission in accordance with paragraphs (a) and (b) of this section
as if it was an initial request for an advisory opinion.
(d) Upon acceptance of the request, the OIG will notify the
requestor by regular U.S. mail of the date that the request for the
advisory opinion was formally accepted.
(e) The 60-day period for issuance of an advisory opinion set forth
in
Sec. 1008.43(c) of this part will not commence until the OIG has
formally accepted the request for an advisory opinion.
Sec. 1008.43 Issuance of a formal advisory opinion.
(a) An advisory opinion will be considered issued, once payment is
received, when it is dated, numbered, and signed by an authorized
official of the OIG.
(b) An advisory opinion will contain a description of the material
facts known to the OIG with regard to the arrangement for which an
advisory opinion has been requested. The advisory opinion will state
the OIG's opinion regarding the subject matter of the request based on
the facts provided and known to the OIG.
(c)(1) The OIG will issue an advisory opinion, in accordance with
the provisions of this part, within 60 days after the request for an
advisory opinion has been formally accepted;
[[Page 7360]]
(2) If the 60th day falls on a Saturday, Sunday, or Federal
holiday, the time period will end at the close of the business day next
following the weekend or holiday;
(3) The 60 day period will be tolled from the time the OIG--
(i) Notifies the requestor that the costs have reached or are
likely to exceed the triggering amount until the time when the OIG
receives written notice from the requestor to continue processing the
request;
(ii) Requests additional information from the requestor until the
time the OIG receives the requested information;
(iii) Notifies the requestor of the full amount due until the time
the OIG receives payment of the full amount owed; and
(iv) Notifies the requestor of the need for expert advice until the
time the OIG receives the expert advice.
(d) After the OIG has notified the requestor of the full amount
owed and the OIG has received full payment of that amount, the OIG will
issue the advisory opinion and promptly mail it to the requestor by
regular first class U.S. mail.
Sec. 1008.45 Rescission.
Any advice given by the OIG is without prejudice to the right of
the OIG to reconsider the questions involved and, where the public
interest requires, to rescind or revoke the action. Notice of such
rescission or revocation will be given to the requestor so that the
individual or entity may discontinue the course of action taken in
accordance with the OIG advisory opinion. The OIG will not proceed
against the requestor with respect to any action taken in good faith
reliance upon the OIG advice under this part, where all the relevant
facts were fully, completely and accurately presented to the OIG, and
where such action was promptly discontinued upon notification of
rescission or revocation of the OIG approval.
Sec. 1008.47 Disclosure.
(a) Advisory opinions issued and released in accordance with the
provisions set forth in this part will be available to the public.
(b) Promptly after the issuance and release of an advisory opinion
to the requestor, a copy of the advisory opinion will be available for
public inspection between the hours of 10:00 a.m. and 3:00 p.m. on
normal business days at the headquarter offices of the OIG and on the
DHHS/OIG web site.
(c) Any pre-decisional document, or part of such pre-decisional
document, that is prepared in the OIG, DoJ or any other Department or
agency of the United States in connection with an advisory opinion
request under the procedures set forth in this part will be exempt from
disclosure under 5 U.S.C. 552, and will not be made publicly available.
(d) Documents submitted by the requestor to the OIG in connection
with a request for an advisory opinion will be available to the public
to the extent authorized by 5 U.S.C. 552, through procedures set forth
in 45 CFR part 5.
(e) Nothing in this section will limit the OIG's right, in its
discretion, to issue a press release or otherwise publicly disclose the
identity of the requesting party or parties, and the nature of the
action taken by the OIG upon the request.
Subpart F--Scope and Effect of OIG Advisory Opinions
Sec. 1008.51 Exclusivity of OIG advisory opinions.
The only method for obtaining a binding advisory opinion regarding
any of the subject matters set forth in Sec. 1008.5(a) is through the
procedures described in this part. No binding advisory opinion, oral or
written, has or may be issued by the OIG regarding the specific matters
set forth in Sec. 1008.5(a) except through written opinions issued in
accordance with this part.
Sec. 1008.53 Affected parties.
An advisory opinion issued by the OIG will have no application to
any individual or entity that does not join in the request for the
opinion. No individual or entity other than the requestor(s) may rely
on an advisory opinion.
Sec. 1008.55 Admissibility of evidence.
(a) The failure of a party to seek an advisory opinion may not be
introduced into evidence to prove that the party intended to violate
the provisions of sections 1128, 1128A or 1128B of the Act.
(b) An advisory opinion not issued to a person may not be
introduced into evidence to prove that person did not intend to violate
the provisions of sections 1128, 1128A or 1128B of the Act.
Sec. 1008.59 Range of the advisory opinion.
(a) An advisory opinion will state only the OIG's opinion regarding
the subject matter of the request. If the arrangement for which an
advisory opinion is requested is subject to approval or regulation by
any other agency, such advisory opinion will not be taken to indicate
the OIG's views on the legal or factual issues that may be raised
before that agency.
(b) An advisory opinion issued under this part will not bind or
obligate any agency other than the Department. It will not affect the
requestor's, or anyone else's, obligations to any other agency, or
under any statutory or regulatory provision other than that which is
the specific subject matter of the advisory opinion.
Dated: December 26, 1996.
June Gibbs Brown,
Inspector General, Department of Health and Human Services.
Approved: January 28, 1997.
Donna E. Shalala,
Secretary.
[FR Doc. 97-4086 Filed 2-18-97; 8:45 am]
BILLING CODE 4150-04-P
