The United States Centers for Medicare and Medicaid Services (CMS) recently updated its published data on settlements made under the Voluntary Self-Referral Disclosure Protocol. These settlements come about when providers disclose actual or potential violations of the federal physician self-referral prohibition, also known as the Stark Law.
The self-referral disclosure protocol was established in the Affordable Care Act and providers are required to submit all information on actual or potential violations to CMS.
Even though the published data is limited, it shows a significant increase in the number of disclosures CMS settled last year, but the amounts paid appear to remain generally consistent with prior years’ settlements.
In the initial years of this reporting, CMS published short descriptions of the settlement, including a general description of the disclosing party, the nature of the actual or potential violation, the date of the settlement, and the amount of the settlement. However, in 2016, CMS started to only report aggregate data, not individual settlements, because the disclosures “include proprietary, confidential, or otherwise nondisclosable information.”
In the most recent data update, data from 2021 and 2022 are included, as are a few settlements from 2020 that were not included in the prior update. In 2020, a total of 36 settlements were reached, ranging from $33 to $952,300, for a total of $4,344,966. In 2021, a total of 27 settlements were reached, ranging from $631 to $1,110,148, totaling $1,988,451.
In 2022, a whopping 104 settlements were reached, ranging from $299 to $1,171,174, for a total of $9,287,866 – the highest year in both number of disclosures settled and the aggregate amount of all settlements for the year. CMS representatives have previously noted that the agency has dedicated more resources to resolving voluntary disclosure matters, with some submissions being reviewed and responded to as they come in, not the order in which they have received.
The data also notes that as of December 31, 2022, 232 disclosures were withdrawn, closed without settlement, or settled by CMS’ law enforcement partners.
Importantly, while the settlement amounts seem to be relatively consistent from year to year, there is no average (or predictable) settlement amount as CMS reviews the facts and circumstances of each submission, including the nature and extent of the improper or illegal practice, cooperation of the disclosing party, and the timeliness of the disclosure.