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October 03, 2014 01:00 AM

Reform Update: HHS seeks to relax fraud and abuse rules to spur care innovation

Paul Demko
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    The Obama administration is trying to reduce legal barriers to coordinating care and giving patients the products and services they need to improve their health, such as transportation to medical appointments and blood-pressure cuffs.

    In a proposed rule issued Thursday by HHS' Office of Inspector General (PDF), the agency proposed additional safe harbors from prohibitions on providing incentives to patients enrolled in government health programs to seek treatment. It also solicited input from providers on how it can relax rules against reducing or limiting services in order to encourage efficient medical care.

    The proposals drew widespread praise for adjusting what many view as antiquated fraud and abuse rules that have stymied care innovations that the Patient Protection and Affordable Care Act has sought to encourage. In particular, the effort to permit so-called gainsharing arrangements is viewed as a significant development in expanding coordinated-care efforts such as bundled payments, medical homes and accountable care organizations.

    Gainsharing generally refers to an arrangement in which a hospital gives physicians a share of the savings if they deliver care at lower costs while satisfying quality safeguards.

    “It's an appropriate response and I think a creative response to the growing pressures on hospitals to incentivize doctors to not waste services or supplies,” said Lewis Morris, who served as chief counsel to the OIG until 2012. “That's going to be a big deal and very positive.”

    Gerald Griffith, a health law expert at law firm Jones Day, pointed out that the federal agency first proposed allowing such arrangements in 1994, but the proposed rule was never finalized. “The immediate takeaway for providers is that there may be greater flexibility on the horizon for gainsharing programs that many folks have expressed interest in,” Griffith said. “There's hope on the horizon.”

    HHS is seeking input from providers and other interested parties on how it can define the term “reduce or limit services” to allow for care innovations. Currently, providers are prohibited from trying to convince patients to skip procedures or tests, even if they're unlikely to be medically beneficial.

    “We seek to interpret the statutory prohibition broadly enough to protect beneficiaries and Federal health care programs, but narrowly enough to allow low-risk programs that further the goal of delivering high-quality health care at a lower cost,” the rule states.

    The proposal to carve out additional areas where providers can offer services to clients in government programs without fear of criminal prosecution also drew praise from legal experts and patient advocates. In particular, the provision that would allow transportation services to clients is deemed sensible.

    “That's been a long time coming and something that the OIG promised to do years and years ago,” said Robert Homchick, past chair of the American Health Lawyers Association's practice group on fraud and abuse. “We're not talking limousine service. We're talking shuttle buses, van rides, those sorts of things.”

    Cherilyn Cipriano, executive director of the Kidney Care Council, a Washington-based advocacy group, said that the organization wasn't advocating for the change to allow providers to offer transportation, but that it looks like a promising proposal, particularly for frail patients. “One of their biggest challenges is getting to their dialysis appointments three times a week,” Cipriano said. “And if they miss their dialysis appointment they're much more likely to end up in a hospital.”

    Similarly, HHS is proposing eliminating prohibitions on providing patients with tools that could lead to better health outcomes. The proposed rule specifically cites blood-pressure cuffs and scales as potentially beneficial tools for clients to monitor their health and improve outcomes.

    Homchick said the only potential downside to the proposed rule is if HHS layers so many restrictions on the proposed relaxation of policies that they become functionally obsolete for providers. “There's a temptation to regulate to the lowest-common denominator,” Homchick said. “The devil will be in the details.”

    The proposed rule is open for comments for 60 days.

    Consumer advocacy group sues feds over insurance rate access

    A consumer advocacy group in Missouri has filed a lawsuit in federal court seeking to force the federal government to disclose premium rates for exchange plans ahead of the open-enrollment period that begins Nov. 15. The Consumers Council of Missouri filed the lawsuit after its Freedom of Information Act request for the data was denied. The group is represented by Jay Angoff, former director of HHS' Office of Consumer Information and Insurance Oversight, the department established to implement the insurance provisions of the Affordable Care Act.

    Obamacare takes center stage in election ads

    More than 300,000 ads have been created this election cycle that mention President Barack Obama or Obamacare, according to an analysis by the Center for Public Integrity. More than a third of the ads in Senate races reference either the president or his signature healthcare law. Even in contests for non-federal offices, Obama or Obamacare is invoked in 10% of campaign ads.

    Follow Paul Demko on Twitter: @MHpdemko

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