Anti-Kickback Regs Near Approval, After Only 19 Years

The White House is reviewing proposed regulations to ease restrictions on certain financial arrangements between hospitals and physicians and on certain transactions between providers and patients.  The proposed regulations, received by the Office of Management & Budget on August 16, are certainly welcome to providers, but there is little if anything in them that hasn’t been expected for a long time—a very long time.  Some of the regulations simply recognize statutory changes enacted as far back as the Balanced Budget Act (BBA) of 1997.

Changes in the Anti-Kickback Act safe harbors and civil monetary penalty (CMP) rules expand the latitude for “gainsharing” arrangements, i.e., arrangements by which hospitals and physicians share in savings achieved through joint efforts.   That’s favorable to providers, but it doesn’t do much that hadn’t already been done by the Medicare Access & CHIP Reauthorization Act of 2015.

The CMP rules have long made it illegal for a provider to offer or give “remuneration”—i.e., anything of value–in return for patient referrals.  The new regulations change the definition of “remuneration” to allow providers to give a range of free or discounted goods and services to patients, including, for example, reduced copayments for outpatient services.  This is good for providers and patients alike, but it’s not a new concept.  It reflects statutory changes going back to the BBA of 1997 and the Affordable Care Act of 2010.

If the wheels of justice turn slowly, the wheels of Health & Human Services turn glacially.

The proposed regulations can be found at RIN:0936-AA06.

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