A blog by attorneys for anyone interested in or affected by The Sunshine Act.

Sunshine Act Enforcement on the Horizon?

March 26, 2015
Ruselle W. Robinson

The 2014 Sunshine Act/Open Payments reporting period comes to an end in a few days on March 31, 2015.  Unlike last year, when complications seemed to arise daily, the second reporting cycle has been relatively calm and lacking in public controversy.

On March 10, 2015, CMS held its last live Question and Answer Session for this reporting period.  Douglas Brown of CMS took questions that focused on problems applicable manufacturers and applicable group purchasing organizations were experiencing with CMS’ improved, but not yet perfected, physician matching process, and with final submission of 2014 data.

Mr. Brown used a discussion of physician matching issues to introduce the possibility that CMS soon will start enforcing the Sunshine Act.  He mentioned audits and civil monetary penalties as enforcement tools.  Mr. Brown didn’t issue a threat—he discussed enforcement while coaching submitting entities to avoid penalties by taking certain steps with the physician match process.

But the message was there.  CMS soon will enforce the Sunshine Act/Open Payments program by auditing data submissions and imposing civil monetary penalties where appropriate.  While CMS is unlikely to demand civil monetary penalties for problems that can be traced back to its own failures, industry reasonably can expect enforcement to begin either with this reporting cycle, or with the 2015 cycle (starting February 2016).

Ideally, CMS will make an announcement before it begins auditing data submissions to put industry on notice that enforcement activities are underway.  Of course, I don’t know whether CMS will take this route.

Here is the schedule for the remainder of the current reporting period:

  • Review and Dispute period will run from early April into May 2015
  • Correction period will take place May/June 2015
  • Data publication on June 30, 2015

Last year,  less than 5% of physicians registered in time to review and dispute their 2013 data.  Approximately 30 % of teaching hospitals registered.  While I expect the registration percentages to rise, it will be interesting to see whether a significant percentage of physicians register in time to review their 2014 data.  After all the noise about disclosure of physician–industry relationships, do physicians even care if those relationships become public?

I will keep you posted.


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