AAOS October 30, 2018
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AAOS Advocates For Anti-Kickback Reform, Reduced Burdens on Care Coordination

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AAOS Advocates For Anti-Kickback Reform, Reduced Burdens on Care Coordination

The Department of Health and Human Services’ Office of Inspector General (OIG) released a Request for Information on August 27, asking for stakeholder feedback on the Anti-Kickback Statute and Beneficiary Inducements Civil Monetary Penalties laws. Among the topics that the OIG sought input for were:
  • Potential care coordination arrangements that may implicate the anti-kickback statute or beneficiary inducements CMP;
  • Additional or modified safe harbors to the anti-kickback statute or exceptions to the definition of “remuneration” under the beneficiary inducements CMP;
  • And opportunities for the OIG to clarify its position through guidance as opposed to regulation.

Broader than the OIG’s annual Solicitation of New Safe Harbors and Special Fraud Alerts, the current RFI demonstrates OIG’s willingness to try and balance flexibility for industry stakeholders with “protections against the harms caused by fraud and abuse.” This RFI, along with one earlier this year pertaining to physician self-referral laws, has given AAOS the opportunity to convey the burdens and challenges the existing fraud and abuse legal framework places on care coordination arrangements. HHS’ Regulatory Sprint to Coordinated Care (R2CC), a package of regulatory actions and initiatives including a series of requests for information, is expected to produce rulemaking later this fall or early next year to help relieve these burdens.

AAOS’ comments reiterated that if greater coordination of care is expected to succeed, additional safe harbors are necessary to foster thoughtful, innovative partnerships among providers and other participants. AAOS strongly supports providing a safe harbor within the anti-kickback law for physicians seeking to develop and operate Alternative Payment Models (APMs) and other care coordination efforts. The Centers for Medicare and Medicaid Services (CMS) has repeatedly emphasized its commitment to making the transition to value-based payment as successful as possible. Removing administrative barriers to participation in these bundled payment arrangements and providing adequate participation flexibility to physicians will ensure that these new arrangements are worthwhile.  

Additionally, electronic health record (EHR) adoption and use is a critical component of care delivery both inside and outside of the Medicare program. Given the importance of EHRs to the success of the Quality Payment Program and to the future of healthcare both in federal and private programs, AAOS urged the OIG to broaden the overall EHR donation safe harbor. Among other changes AAOS recommended, we strongly urged the OIG to consider creating a safe harbor for the donation of cybersecurity technology, training, and other related services. As the electronic exchange of patient data continues to increase, and cyber risks proliferate throughout all sectors, providers are eager both to participate in the new digital health incentive programs and to ensure their patient data is safe.

AAOS will continue to share members’ concerns with the Administration to ensure that coordinated care arrangements and other beneficial partnerships do not get swept up in unnecessarily, burdensome fraud and abuse safeguards.

Read AAOS’ full letter to OIG on its Anti-Kickback Statute and Beneficiary Inducements Civil Monetary Penalties laws here.