Oct 11, 2019 By Rich Daly, HFMA senior
writer/editor
Provider alignment to get a boost under anti-kickback, Stark
proposals: attorney
·
Under
proposed changes, hospitals no longer would be barred from entering into
money-losing contracts with other providers for needed services.
·
Hospitals
in rural areas that provide transportation could get legal protection under the
changes.
·
The
reduced legal risk could lead more providers to try value-based payment models.
Among the potential
benefits to providers under proposed changes to Stark and anti-kickback
regulations is a boost for hospitals’ post-discharge transportation assistance
programs, according to an attorney.
This week, the Centers
for Medicare & Medicaid Services (CMS) issued a proposed rule to change enforcement of the Stark Law,
while a separate proposed rule from
the U.S. Department of Health and Human Services’ (HHS’s) Office of Inspector
General would change enforcement of the anti-kickback statute.
Alyssa James, JD, an
attorney for Hall, Render, Killian, Heath & Lyman, provided some early
insights on the complex proposals to change enforcement of the federal
healthcare anti-fraud laws. The changes aim to encourage more provider
participation in value-based payment models.
The following Q&A was
edited for clarity.
HFMA: What seems most important among the
changes proposed?
James: OIG and CMS have proposed a number of
safe harbors and exceptions targeted at the recent trends in value-based
payment models. This is significant as it is important for providers to be
aligned when transitioning from volume-based to value-based payment
methodologies.
On the Stark Law side,
significant is the proposed change to the definition of commercially reasonable, which provides that an arrangement
may be commercially reasonable even if it does not result in profit for one or
more of the parties [CMS now limits such arrangements to those that financially
benefit the parties].
This is important because
hospitals often have to contract for needed community services (psychiatric
services, burn units, etc.) that may not necessarily result in a profit for the
hospital.
On the anti-kickback
statute side, the proposed expansion of the local transportation safe harbor
may be particularly beneficial to hospitals and other healthcare providers in
rural communities as well as hospitals serving patient populations that struggle
to obtain transportation from the hospital following discharge.
HFMA: Could such changes increase
participation in value-based models?
James: We do believe that these proposed changes
could encourage more participation in these payment models. If providers
believe that the legal risk of engaging in value-based enterprises has been
reduced to an acceptable level, they may be more inclined to take on financial
risk.
HFMA: Is this just the latest recently
proposed change to these laws? Didn't the Medicare physician payment proposed rule include changes,
for example?
James: It is clear that HHS continues to be
focused on incentivizing care coordination and participation in value-based
models. These proposed changes are very targeted in nature and go beyond the
scope of prior proposals.
HFMA: Any potential downsides to consider?
James: We are reviewing the proposed
regulations further to analyze all of the nuances for providers as it relates
to potential opportunities and risks.
About the Authors
Rich Daly, HFMA senior writer/editor is based in the
Washington, D.C., office. Follow Rich on Twitter: @rdalyhealthcare
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