Repayment can be part of disclosure plan
If you repay within 60 days, it could help your case
Some violations of Stark and other laws can be resolved largely through repayment of the money involved, explains Karl A. Thallner Jr., JD, a partner with the law firm of Reed Smith in Philadelphia. You still might need to disclose the violation, but the government is likely to go easier on you if already have repaid the money.
"If there's a Stark noncompliant arrangement with an anesthesiologist, and the anesthesiologist orders some services that the hospital provides but not much, then one approach would be to just make a repayment for the Medicare-reimbursed hospital services that derived from the referral," Thallner says. "If you do that within 60 days of when it is identified, you've done what they want, and I think you're going to be in good enough shape."
If the repayment is a clean, clear solution to an oversight, self-disclosure might not be necessary, Thallner says.
A bigger problem is a Stark-noncompliant significant referral source, Thallner says. When the value of the services referred is so high that immediate repayment is impractical, then you will have to go through the self-referral protocol.
"If you're exposing yourself to the government through a disclosure, you have to be truthful and open in a way that doesn't make the government suspect something serious and untoward is going on," Thallner says. "You will have to spend a lot of time determining how you want to tell the story so that it is truthful but positions the violation as an isolated problem and you have determined how to prevent a recurrence."
