The confusion surrounding the Stark Law is so pernicious, both because of the law’s wide applicability and because of the consequences of not fully complying with its mandates. Stark’s reach extends from a solo physician’s ordering services performed in his/her own unincorporated medical practice to a physician’s referrals to a hospital, laboratory, or other independent health care provider. The consequences of a physician making referrals under an arrangement that does not completely comply with Stark are that the recipient of the referrals may not bill Medicare for the services.
The effects of noncompliance deserve emphasis. Noncompliance directly and inevitably arises from Stark’s complexity and confusion. Yet Stark is a strict liability statute—meaning that a health care provider’s good faith intent to comply with the law, and any lengths the provider may go to attempt to comply, are irrelevant. Regardless of how analytically difficult a Stark issue may be, and regardless how many reputable law firm opinions a health care provider may obtain, a Stark violation is a Stark violation. See, for example, the American Health Lawyers Association white paper, “A Public Policy Discussion: Taking the Measure of the Stark Law,” which is available here.
The government is, of course, automatically entitled to recoupment of any payments made for services referred in violation of Stark. To add insult to injury, the Patient Protection and Affordable Care Act (the “PPACA,” the so-called “reform” act) subjects providers who receive reimbursements under such arrangements to False Claims Act and Civil Monetary Penalties liability, if the overpayments are not reported and repaid to the government with 60 days of identification. This potential FCA/CMP liability under the PPACA exists even if the provider acted without “reckless disregard” and had no “reason to know” the claims in issue violated Stark when they were filed.
Congress mandated in the PPACA that CMS promulgate a self-referral disclosure protocol, under which providers could disclose actual or potential Stark violations to the government and perhaps settle for less than the maximum overpayment liability. As discussed here, that protocol has its own complexities, limitations, and risks. It certainly remains to be seen how flexible CMS will be in resolving Stark issues where potential violations are not merely “technical” (e.g., failures to obtain signed writings for otherwise compliant arrangements), but result from a potentially erroneous interpretation of the law.
So there remains a continuing need for Stark answers and hopefully StarkAnswers can supply some.
Folks who have seen me on the AHLA Starklaw listserve may wonder why I’m starting this site instead of just posting items there. Although the idea for StarkAnswers.com arose in part through my participation in the listserve and some issues discussed there may also be addressed here, this site is intended to present more detailed analyses than appropriate for the listserve. Plus, narcissism aside, I can express myself more fully on this site.
© 2011 by Alan Rumph and StarkAnswers.com. All rights reserved.