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.
