With the proposed rule adding meat to the reform law's provision for Medicare to reward accountable care organizations will come new regulation of the federal fraud-and-abuse laws to accommodate the tighter integration the law seeks among providers.
The Federal Trade Commission and U.S. Justice Department, at the same time, are expected to issue new guidance granting express leeway to allow providers to pursue integration while also preserving competition in healthcare markets.
The formation of new alliances and consolidation answering the call for ACOs may also generate friction around who gets invited to the dance. Excluded physicians and practices may file lawsuits alleging antitrust violations or other untoward conduct if they're spurned from participating in networks.
Gabriel Imperato, a managing partner in the law firm Broad and Cassel, says providers are certain to face intense scrutiny from the government, with investigations fueled by last year's boost in anti-fraud enforcement resources and resolve stoked by the need to pay for the Affordable Care Act. “There are more people in the game,” Imperato says, referring to the increased ranks of investigators and prosecutors, “and the government has more at stake in getting recoveries.”
He adds that “there's some anecdotal evidence to reflect some pressure on the enforcement agencies to hold individuals accountable,” suggesting more executives and physicians may find themselves personally targeted.