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Will the HHS find alternative pay an Anti-Kickback violation?

| Dec 4, 2018 | Stark Law/Anti-Kickback Statutes |

The government is working to transform our healthcare system into one that pays for value. The Health and Human Services Department (HHS) recognizes that care coordination is an important tool to meeting this goal. However, the government has also recognized physicians and other medical professionals abused this system with the use of kickbacks solely intended for financial gain. To thwart such abuse, the government had previously passed Anti-Kickback laws.

Although these laws have reduced abuse, they have also made it difficult for physicians and other medical professionals to coordinate patient care. The government has recognized this issue and is reevaluating the rules and regulations that are currently in place.

How is the government reevaluating the current set of rules? Back in August, the HHS requested information about any regulatory provisions that “may act as barriers to coordinated care or value-based care.” The agency asked for the public to provide information to help guide discussions for potential change.

Why would the HHS consider an alternative pay model a violation? Hospitals use alternative pay models to help better ensure patients receive the care they need from the right set of professionals. However, as noted in a recent article by Modern Healthcare, the agency could find models that use incentives and shared savings payment agreements as an Anti-Kickback violation.

Hospitals can use these strategies to help reduce the overall cost of healthcare. However, the government could argue the hospital uses the strategy to encourage the use of specific vendors for financial gain.

What can be done to avoid allegations of a violation? The chief healthcare officer for the Association of Medical Colleges has called upon the HHS to provide a safe harbor for hospitals and health systems that use these models. If passed, the safe harbor would allow qualifying medical facilities to take advantage of alternative pay models without fear of allegations of wrongdoing

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