Nonetheless, some of these regulations affect present activity by many physicians. It is important to discuss them now, because there is no assurance that HCFA will allow activity that takes place before the regulations are released, but violates the regulations. Physicians who are out of compliance with these proposed regulations should immediately evaluate their options with competent health care counsel. HCFA and the Office of Inspector General continue to maintain that a claim that violates the Stark requirements also violates the federal False Claims Act and related fraud and abuse statutes. Thus, the group probably cannot justify its entitlement to provide those X-ray and ultrasound services.
Proactive compliance is essential.
I have counseled clients that this broad language probably applies to more than just tracking utilization of the prohibited designated health services. Rather, I argued, the language of the statute applies to all referrals, even if not tied to designated health services, and may well apply to any business between the parties, even if not related to health care. However, the HCFA representatives indicated that the proposed regulations would narrow that requirement substantially, but only by preventing the group from crediting referrals when the referrals apply specifically to prohibited designated health services. So a group would be legally permitted, for example, to credit its physicians for referrals to other physicians, as long as those referrals relate to non-DHS activities. This is an important relaxation of the rules for groups struggling to create practical and safe compensa- tion arrangements.