Both industry groups are worried about the 1972 federal anti-kickback law that prohibits providers from offering patients financial incentives to use medical services paid for by federal healthcare programs. That law has never been applied to privately insured patients. The issue is whether exchange plans are considered government programs under that law, particularly given that many exchange plan enrollees will receive federal premium tax credits to help them pay the premiums.
Over the past two weeks, the Obama administration has sent mixed signals on the question.
HHS Secretary Kathleen Sebelius, in an Oct. 30 letter to Rep. Jim McDermott (D-Wash.), wrote that plans sold on exchanges are not “federal healthcare programs” under the anti-kickback law, apparently allowing hospitals and drugmakers to help patients pay for premiums and cost-sharing.
Then last week, the CMS' Center for Consumer Information and Insurance Oversight published an online answer to a “frequently asked question” urging insurers offering plans on the exchanges to reject any premium payments that come from healthcare providers on behalf of patients. The Nov. 4 statement said such financial support could negatively affect exchange plan risk pools. That reflected insurers' concerns that hospital premium contributions would increase the proportion of sicker people in the exchange plan, said Ankur Goel, a partner at McDermott Will & Emery and former federal prosecutor.
The insurance industry welcomed the CMS office's position. Robert Zirkelbach, a spokesman for America's Health Insurance Plans, said hospitals and drugmakers pay patients' premiums and copays to benefit themselves by boosting utilization of hospital services and drugs. “This practice undermines efforts to reward high-quality, cost-efficient care and drives up healthcare costs for consumers, employers and taxpayers,” he said.
The pharmaceutical industry also is very concerned about the issue. Drugmakers, which have offered patients assistance with copayments and coinsurance that can add up to hundreds of dollars a month for some drugs, welcomed Sebelius' statement.