HEALTH LAW ALERT: OIG RELEASES PROPOSED REVISIONS TO ANTI-KICKBACK SAFE HARBORS AND CIVIL MONETARY PENALTY RULES
By Jesse Berg and Tim Johnson, with the assistance of Julia Marotte
The Department of Health and Human Services Office of Inspector General (OIG) recently released a proposed rule that revises safe harbors under the Anti-Kickback Statute (AKS) and Civil Monetary Penalty (CMP) rules regarding beneficiary inducements and gainsharing arrangements. A link to the rule can be found at the bottom of this alert. We encourage readers to submit comments about the proposed rule by Dec. 2, 2014.
Anti-Kickback Statute Safe Harbors
Under the proposed rule, the OIG announced several new safe harbors along with revisions to a number of existing safe harbors:
Civil Monetary Penalty Rules
The OIG proposes a number of changes to the CMP rules, including amending the definition of “remuneration.” This is important because the issue of whether the Anti-Kickback Statute or CMP is implicated by an arrangement depends first on whether any “remuneration” has been provided. The OIG proposes to add the following exceptions to the definition of “remuneration:”
The OIG also proposes to revise the CMP restriction on “gainsharing” arrangements. The gainsharing rule prohibits hospitals from knowingly paying a physician to induce the physician to reduce or limit services provided to Medicare or Medicaid beneficiaries. The OIG noted that the expansive scope of this rule is problematic and may prohibit gainsharing arrangements that are in fact beneficial and cost reducing. In an effort to narrow the reach of the rule, the OIG proposes to codify the gainsharing CMP and adopt a narrow definition of the term “reduce or limit services.” The OIG does not propose specific regulatory language, but instead solicits comments as to the parameters of this provision. Hospitals and physician groups that have struggled to implement arrangements that reward cost-sharing initiatives are encouraged to provide input on how the parameters of the gainsharing CMP should be defined.
The proposed rule to revise safe harbors under the Anti-Kickback Statute (AKS) and Civil Monetary Penalty (CMP) rules regarding beneficiary inducements and gainsharing arrangements is also available online.
If you have comments or questions regarding the proposed rule, please contact Jesse Berg at firstname.lastname@example.org (612.632.3374) or Tim Johnson at email@example.com (612.632.3208).
Gray Plant Mooty is recognized as one of the leading corporate law firms in Minnesota and one of the top franchise firms in the world. Our roots go back to 1866. Today, we are a full-service firm with nearly 180 attorneys and offices in Minneapolis and St. Cloud, Minnesota; Washington, D.C.; and Fargo, North Dakota.