Catching flies with vinegar: a critique of the Centers for Medicare and Medicaid self-disclosure program

This Article argues that the current approach of the Department of Health and Human Services and the Centers for Medicare and Medicaid Services (CMS) to enforcement of the Ethics in Patient Referrals Act (the "Stark Law") is unnecessarily punitive and discourages health-care providers from self-disclosing even very minor violations of the Stark Law. This Article suggests a number of specific changes to encourage provider self-disclosure and proposes that CMS create a demonstration project under the authority of the Patient Protection and Affordable Care Act to test the reforms. A demonstration project provides the perfect vehicle to prove that increased self-disclosure protocols for the Stark Law can decrease the government's costs of enforcement, improve program integrity, and encourage providers to deal responsibly with the inevitable minor lapses in compliance that arise in such an enormous government program as Medicare.