Physician, Refer Thyself: How Stark Law and FCA Intersect

Jonathan Porter welcomes Raul Ordonez, Vice President & Chief Compliance Officer at Jackson Health System, and Husch Blackwell senior counsel Megan Phillips to the podcast to explore the intersection of the False Claims Act with Stark Law, the body of federal law that regulates physician self-referrals in connection with Medicare patients and designated health services (DHS). Our discussion kicks off with a brief introduction to Stark Law, its origin, evolution, and current application to healthcare. Because Stark Law violations concern fraudulent claims submitted to a federally funded program, they often serve as a predicate to allegations of False Claims Act violations, greatly increasing the legal liabilities associated with the initial claim.

The discussion also traces Stark Law developments back to United States ex rel. Drakeford v. Tuomey Healthcare Sys., Inc., the so-called Tuomey case that has had such an enduring impact on healthcare compliance, especially concerning fair-market value calculations and employment contracts and compensation arrangements.

Jonathan, Raul, and Megan turn to regulatory compliance and the challenges faced by healthcare providers in managing the risks created by the complexities of the Stark Law. They discuss the nature of the Stark Law’s strict liability provisions, which in effect punish honest mistakes or good-faith efforts at compliance with which regulators disagree.

The discussion ultimately takes up a recent record $345 million settlement in a Stark Law case where a health system defendant’s physician compensation structures were questioned by government regulators. In the case, the defendant had sought fair-market value opinions but failed to incorporate them into their compensation agreements, which allowed the government to use the defendant’s own valuation assessments as evidence of Stark Law violations. 

Jonathan Porter Biography

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Jonathan focuses on white collar criminal defense, federal investigations brought under the False Claims Act, and litigation against the government and whistleblowers, where he uses his experience as a former federal prosecutor to guide clients in sensitive and enterprise-threatening litigation. At the Department of Justice, Jonathan earned a reputation as a top white collar prosecutor and trial lawyer and was a key member of multiple international healthcare fraud takedowns and high-profile financial crime prosecution teams. He serves as a vice chair of the American Health Law Association’s Fraud and Abuse Practice Group and teaches white collar crime as an adjunct professor of law at Mercer University School of Law.

Raul Ordonez Biography

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For over a decade, Raul has served on the compliance team of Jackson Health System, one of the nation’s largest public healthcare networks. In March 2022 he was named Vice President & Chief Compliance Officer, in which capacity he directs JHS’s compliance efforts system-wide, including its flagship Jackson Memorial Hospital, three community hospitals, Holtz Children’s Hospital/The Women’s Hospital at Jackson Memorial, Jackson Behavioral Health Hospital, the Christine E. Lynn Rehabilitation Center for The Miami Project to Cure Paralysis at UHealth/Jackson Memorial, two nursing homes, and a network of urgent care centers, physician practices, and clinics. Raul earned an Executive MBA in Health Management and Policy from the University of Miami, a J.D. from the Un