QUESTION:        We have just determined that several of our compensation arrangements have failed to comply with a Stark Law exception and that we need to make a Self-Disclosure to CMS.  Is there anything new with this process?

ANSWER:            Yes.  Please see the “Government at Work” section of this week’s HLE for a link to CMS’s proposed Stark Voluntary Self-Referral Disclosure Protocol (the “Proposed SRDP”).  While it is only proposed and has not been adopted in final form, since CMS’s Proposed SRDP is based on CMS’s February 12, 2016 overpayment rule, we recommend you follow the Proposed SRDP.

The Proposed SRDP is much more structured than the former protocol and requires a provider to utilize CMS’s mandated forms and format.  One helpful feature of the Proposed SRDP is that it provides several illustrative examples as to how CMS expects a provider to determine the amount of the overpayment.

The Proposed SRDP also makes it clear that if conduct raises concerns under the Anti-Kickback statute and the Stark Law, then you are to use the OIG Self-Disclosure Protocol, not the Proposed SRDP.  The Proposed SRDP then states “Disclosing parties should not disclose the same conduct under both the SRDP and OIG’s Self-Disclosure Protocol.”

The Proposed SRDP also states that you must look back six years.  Again, this is now required by CMS’s Overpayment Rule.  CMS wants the six-year look-back summary to be by calendar year.  If no overpayments were made in one or more calendar years during that six-year look-back period, the year must be included, but the amount of the overpayment for that year is to be left blank.  A provider must also identify the overpayment by physician using the physician’s NPI Number.

CMS provided this chart as an example of the format they expect a provider to provide.

SAMPLE FINANCIAL ANALYSIS WORKSHEET:

Physician Name	NPI	Date Over- Payment Identified	CY 2010	CY 2011	CY 2012	CY 2013	CY 2014	CY 2015	CY 2016	TOTAL
Dr. A	xxxxxxxxxx	2/18/16				$100,000.00	$100,000.00	$100,000.00		$300,000.00
Dr. B	xxxxxxxxxx	3/24/16	$25,000.00	$10,000.00	$75,000.00	$  50,000.00	$  50,000.00	$  50,000.00	$10,000.00	$270,000.00
Dr. C	xxxxxxxxxx	4/5/16		$  5,000.00	$25,000.00	$  20,000.00	$  20,000.00	$  20,000.00		$  90,000.00
TOTAL:       $660,000.00

Want more information on the Proposed SRDP, the February 12, 2016 Overpayment Rule, recent False Claims Settlements, and new cutting edge issues like how to implement MACRA and CJR Gainsharing?  Then join Henry and Dan in Las Vegas on October 13-15 for HortySpringer’s Physician-Hospital Contracts Clinic.