The CMS newly proposed rules for gain-sharing and other pay-for-performance initiatives released last month could be a significant step toward loosening financial-arrangement restrictions that many believe prevent doctors and hospitals from aligning on quality-improvement and cost-savings efforts, healthcare-quality experts say.
The proposed rules are part of 2009 physician-payment policies that the CMS is seeking comment on from healthcare providers and stakeholders. The CMS will accept comments until Aug. 29 and expects to issue a final rule by Nov. 1. The 834-page document covering a wide variety of issues was released June 30. Among the proposed rules is a CMS statement of intention to clarify and broaden the use of gain-sharing programs. The document includes a proposed exception to anti-kickback and physician self-referral statutes that technically make gain-sharinga process where hospitals pay physicians for achieving certain care-quality and cost-savings goalsillegal. We believe that a broader exception that includes incentive-payment programs is needed to facilitate the full array of nonabusive, beneficial incentive-payment and shared-savings programs that we consider important for promoting the highest quality of care for our beneficiaries while achieving cost savings for the program, CMS officials wrote.
The proposed exception offers specific measures that CMS officials said are designed to prevent physicians participating in gain-sharing initiatives from cherry-picking and directing healthier Medicare patients to hospitals offering incentive payments for improved clinical outcomes and from denying certain treatments in order to save money for a cost-reduction initiative.
I can tell you that this is something that we support, says Brian Whitman, an associate with the American College of Physicians regulatory and insurer affairs division, of the proposed gain-sharing exception. We think theres a problem in healthcare with payment silos, where payment for (Medicare) Part A and Part B dont connect, and that creates quality problems.
Charles Hart, M.D., president and chief executive officer of seven-hospital Regional Health in Rapid City, S.C., and chairman of Premiers Quality Improvement Committee, says that if implemented, the new exception should clarify gain-sharing rules and make it easier for hospitals to implement programs without fear of running afoul of the law. In the past, with most of these gain-sharing projects, its been a very technical effort and risks were greater than the rewards, says Hart, who notes that hospitals currently have to put their proposed program through extensive review by the inspector generals office. Whats more, the programs have typically been narrowly focused on controlling costs on the purchase of physician-preference items such as orthopedic implants. There were high costs associated with putting the programs in place so that when you ran it all out, the rewards werent worth it.
As a result, to date most gain-sharing programs have come in the form of demonstration projects, he adds.
But while the exception may clarify the rules of engagement, attorney Daniel Melvin, a partner in the Chicago office of McDermott Will and Emery, says that he doesnt think it will necessarily bring about a less-involved review process of gain-sharing programs by legal organizations such as the inspector generals office.
The OIG has never wavered from its opinion that gain-sharing violates the law, but in cases where hospitals have sought its opinion (about implementing gain-sharing) the OIG has said it wouldnt prosecute, Melvin says. He adds that the agency might want to maintain a hand in ensuring that gain-sharing programs dont skirt the lines of any new CMS payment rules. But, I do think that hospitals will seek to develop programs now that a government agency is looking favorably on gain-sharing.What do you think? Write us with your comments at [email protected]. Please include your name, title and hometown.