Cong. McDermott Letter to CMS Urges Revision to Self-Referral Disclosure Protocol

by King & Spalding

Representative Jim McDermott (D-Wash.), Ranking Member of the Ways and Means Subcommittee on Health, and the lead author of the provision in the Affordable Care Act establishing the CMS Self-Referral Disclosure Protocol (SRDP), has requested that CMS provide a written, detailed plan for how it will address the backlog of disclosures that CMS has received under the SRDP, as well as thoughts on how the SRDP may be revised to facilitate resolution of future submissions.  In his August 13, 2013 letter to CMS, Rep. McDermott states that CMS has received nearly 300 submissions under the SRDP, but has settled fewer than 30.  Though Rep. McDermott recognizes that CMS is “overwhelmed by the number of disclosures” and “underfunded and understaffed,” he suggests CMS should consider modifying the SRDP to ensure more expedient resolution.  In particular, Rep. McDermott suggests CMS consider the following:

  • Revise the SRDP to include guidance on time parameters to ensure providers and suppliers have some certainty when making SRDP submissions.
  • Modify the internal deliberative process used to make determinations about the amounts due and owing in order to more easily resolve disputes.  For example, require more prompt furnishing of information from each of the CMS components involved in SRDP administration to decrease turnaround time.
  • Publicize certain limited information related to CMS’s internal deliberative process, similar to the recent modification by the OIG to its Self-Disclosure Protocol.  Rep. McDermott suggests that such modification would allow providers and suppliers to better understand whether the SRDP is the appropriate avenue for resolution, or whether another avenue—such as refunding the overpayment to the Medicare Administrative Contractor or working with the U.S. Attorney’s Office—is more appropriate.
  • More readily transfer certain cases that may be more serious and involve potential Anti-Kickback Statute violations to the OIG.  Consider whether modifications can be made to the SRDP to ensure CMS staff can promptly identify such cases. 
  • Give providers incentives to supply an initial complete submission, such as moving providers and suppliers who fail to include complete information, or who have repeat difficulties in submitting required information, to the “back of the line,” or state that a provider’s obligation to report and return an overpayment will not be tolled for incomplete submissions.

Rep. McDermott requests that CMS contact his staff no later than October 18th with its written, detailed plan for addressing the backlog, and its initial thoughts on SRDP modification.  For a copy of Rep. McDermott’s letter to CMS, please click here

Reporter, Kerrie S. Howze, Atlanta, +1 404 572 3594,  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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