New Anti-Kickback Law 'Safe Harbors' Proposed
In his Health Law column, Francis J. Serbaroli writes that as our payment systems have moved away from the fee-for-service model, which unfortunately offered the wrong incentives to dishonest or poor quality providers, a kind of Catch-22 has developed whereby certain types of incentive payments and business arrangements that would improve the quality of care and provide needed assistance to indigent patients could actually run afoul of the federal fraud and abuse laws.
January 26, 2015 at 04:28 PM
10 minute read
Within the dense and complex Patient Protection and Affordable Care Act (ACA) are significant provisions that are intended to incentivize health care providers to furnish better quality care at lower costs, and conversely, to penalize providers for poor quality care or care that was not medically necessary. The problems of poor quality or unnecessary care were caused, in part, by the fee-for-service payment system that was in effect for generations. The fee-for-service model unfortunately offered the wrong incentives to dishonest or poor quality providers to maximize revenue by maximizing services regardless of the quality or the medical necessity of the services provided.
As our payment systems have moved away from the fee-for-service model, however, a kind of Catch-22 has developed whereby certain types of incentive payments and business arrangements that would improve the quality of care and provide needed assistance to indigent patients could actually run afoul of the federal fraud and abuse laws, including the Anti-Kickback Statute (AKS),1 and potentially trigger their drastic penalties.
Anti-Kickback Statute
As we have discussed in previous columns, the AKS is a broadly worded law that prohibits the knowing and willful solicitation, offer, payment or acceptance of remuneration of any kind (including but not limited to kickbacks, bribes or rebates) directly or indirectly, in cash or in kind for:
• Referring an individual for a service or item covered by Medicare, Medicaid or any other federal health benefit program; or
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