As the federal government increasingly emphasizes care coordination among players across the health care continuum, the industry’s top watchdog signaled that it could soon overhaul its anti-kickback regulations to help providers avoid pitfalls.
The Department of Health and Human Services’ Office of the Inspector General (OIG) this week published a call to providers, asking for input on ways that their new care-coordination efforts could potentially run afoul of laws that prevent monetary benefits in exchange for referrals. The goal, according to the OIG, is to establish new regulatory “safe harbors” that allow for certain exceptions to those laws.
“We continue to consider how to balance additional flexibility for industry stakeholders to provide efficient, well-coordinated, patient-centered care with protections against the harms caused by fraud and abuse,” the OIG wrote in the Federal Register.
In particular, the OIG is interested in potentially establishing safe harbors for “innovative technology” that helps to advance care coordination, noting that current carve-outs include exceptions for electronic health records, warranties, and transportation. These exemptions prevent the government from pursuing civil monetary penalties against providers, suspending their ability to participate in Medicare, or finding liability under the False Claims Act.
“Congress intended the safe harbors to be evolving rules that would be updated periodically to reflect changing business practices and technologies in the health care industry,” the OIG noted.
The Centers for Medicare & Medicaid Services (CMS) has pushed value-based care as the overriding principle behind many of its recent moves, with partnerships between providers taking center stage. For instance, under the Bundled Payments for Care Improvement (BPCI) model — set to launch its most recent iteration this fall — Medicare provides a single reimbursement for a patient’s individual care episode, which all of the providers must split. Accountable care organizations (ACOs), meanwhile, offer the potential for multiple providers to either share in the cost savings or risk, placing increased emphasis on partnerships.
But reaching those goals involves establishing close relationships with fellow providers, which could open the door to providing certain incentives that might fall under current federal anti-kickback statutes. For instance, OIG asked providers to weigh in on the risks or benefits associated with providing cash equivalents, gift cards, or in-kind services within value-based arrangements. The office also wants comment on whether to raise its definition of “gifts of nominal value” from $15 to $75 per patient each year, as well as more information about the subsidization of cybersecurity services across settings.
Interested providers have until October 26 to file comments with OIG.
Written by Alex Spanko