Last week the Centers for Medicare and Medicaid Services (CMS) released the new voluntary Self-Referral Disclosure Protocol (SRDP) for Stark violations. The SRDP is the counterpart to the OIG self-disclosure protocol, which allows providers to self-disclose violations of the Anti-Kickback Statute only, OR Stark violations that include a “colorable” AKS violation. The SRDP applies to Stark only violations.
The key take away-points are as follows:
- Pursuant to the SRDP, providers may self-report Stark violations resulting in overpayments via an electronic filing process. A disclosing party must provide a detailed description as to why the party believes a Stark violation has occurred, including a “complete legal analysis” of the application of the Stark law to the matter being disclosed.
- It is important for providers to realize that self-reporting under the SRDP does NOT guarantee them a "get out of jail free" card. While HHS is “authorized to reduce the amount due and owing for all violations under [Stark] to an amount less than that specified” if a provider self-reports, there is no requirement for HHS to do so. Whether such reduction will be made is based on a consideration of several factors, including:
(1) The nature and extent of the improper or illegal practice;
(2) The timeliness of the self-disclosure;
(3) The cooperation in providing additional information related to the disclosure;
(4) Other factors HHS may consider appropriate.
Additionally, CMS reserves the right to refer matters to “law enforcement for its consideration under its civil and/or criminal authorities.”
- It is also worth noting that the SRDP includes a provision requiring that CMS be granted access to all “supporting documents” and does NOT allow providers to assert privileges as to the same. This means that attorney/client privileged documents, if requested, must be turned over.
- What this all means that a provider may self-disclose, but still end up being hit with the same penalties as if he/she had not done so. Additionally, since there is no intent requirement for Stark, by admitting a violation a provider essentially proves the government’s case. Arguably, providers who self-disclose may protect themselves from being targeted by a qui tam whistleblower, but the SRDP as currently structured may cause some providers to think twice before self-disclosing.
This post is NOT meant to discourage providers from self-reporting, but only to provide a brief overview of the SRDP provisions. Providers who have specific questions relating to self-reporting, or any other Stark or Anti-Kickback issue, should contact an experienced health law attorney.
