CMS issues self-referral voluntary disclosure protocol

by Ben Vernia | September 29th, 2010

The Patient Protection and Affordable Care Act (Pub. L. 111-148 – CMS now abbreviates this as just “ACA”) required CMS to issue a protocol for healthcare providers to voluntarily disclose self-referrals (e.g., in violation of the Stark Act, 42 U.S.C. 1395nn). On September 23, CMS issued that procedure, which requires the subject’s cooperation, description of the conduct (including a legal and financial analysis), and verification of the amounts owed by CMS.

The protocol also identifies the factors CMS will consider in reducing the amount owed for the violation:

The factors CMS may consider in reducing the amounts otherwise owed include: (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) the litigation risk associated with the matter disclosed; and (5) the financial position of the disclosing party. While CMS may consider these factors in determining whether reduction in any amounts owed is appropriate, CMS has no obligation to reduce any amounts due and owing. CMS will make an individual determination as to whether a reduction is appropriate based on the facts and circumstances of each disclosed actual or potential violation. The nature and circumstances concerning a physician self-referral violation can vary given the scope of the physician self-referral law and the health care industry. Given this variability, CMS needs to evaluate each matter in order to determine the severity of the physician self-referral law violation and an appropriate resolution for the conduct.

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