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Legal Update from Krieg DeVault LLP:
Avoid trouble; get to know the new self-referral disclosure
e-Reports, October 25, 2010
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The Centers for Medicare & Medicaid Services (CMS) published its voluntary self-referral disclosure protocol (SRDP) Sept. 23, 2010, as required by the Patient Protection and Affordable Care Act. This protocol describes the process for physicians and other health care providers to self-disclose actual or potential violations of the federal physician self-referral law or Stark Law.

Generally speaking, unless an exception is met, the Stark Law prohibits you from making a referral to an entity for the furnishing of designated health services if you, or an immediate family member, has a financial relationship with the entity. Designated health services include imaging and clinical laboratory services, and inpatient and outpatient hospital services – among others.

The SDRP requires you to conduct a financial analysis of the amounts potentially due and owing, plus other required information, and to e-mail an electronic disclosure to CMS. Also mail a hard-copy disclosure. After reviewing a disclosure, CMS will notify you or any disclosing party or representative of an acceptance or rejection.

Currently, you must submit identified overpayments 60 days after the date the overpayment was identified. When you electronically submit a disclosure under the SRDP, this 60-day deadline is suspended until the matter is settled, or you withdraw from the SRDP, or CMS removes the party from the SRDP.

Under the SRDP, CMS will review the matter to determine an “appropriate resolution.” The SRDP authorizes CMS to reduce the penalties assessed against a physician or other provider for Stark Law violations where the health care provider self-reports its conduct. In making this reduction, CMS may consider, among other things:

  • Nature and extent of the improper or illegal practice
  • Timeliness of the self-disclosure
  • Cooperation in providing additional information related to the disclosure

Although CMS will at least consider these factors in each self-disclosure, it is not bound to reduce any amounts otherwise due and owing. The SRDP is available to all health care providers, whether individuals or entities, and is not limited to any particular industry, medical specialty or type of service.

For additional information, contact Leeanne R. Coons at (317) 238-6269.

Article written by Leeanne R. Coons of Krieg DeVault LLP, a law firm headquartered in Indianapolis with offices in Carmel, Noblesville and Schererville, Ind., as well as Chicago, Ill. and Atlanta, Ga. The statements in this article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer for any specific legal question.

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