More than three years after the launch of the Medicare shared-savings program for accountable care organizations, HHS finalized waivers that help participants avoid tripping the fraud and abuse laws that police financial relationships among physicians and hospitals.
The new rule makes some tweaks but doesn't significantly change waivers to the anti-kickback statute, the physician self-referral statute known as the Stark law and the civil monetary penalties law, which many in the industry viewed as potential barriers to the payment and delivery model. The CMS and HHS' Office of Inspector General created the waivers with an interim final rule in 2011.
“The fact that they have finalized it and not felt compelled to narrow it in any fashion is a really important thing,” said Harold Miller, CEO of the Center for Healthcare Quality and Payment Reform in Pittsburgh. “The federal fraud and abuse laws really do create a pretty significant barrier to a lot of the kinds of payment reform efforts that people are talking about.”
The shared-savings program was one of the first ACA provisions to be implemented that was designed to help increase quality and reduce costs. ACOs that participate in the program can share in the savings they generate for a certain population of Medicare patients if they achieve quality benchmarks.
The waivers are meant to give ACOs in that program the flexibility that stakeholders told the Obama administration they needed to coordinate care without running afoul of the federal fraud and abuse laws.
The past several years have shown the waivers to be essential to the functioning of the shared-savings program, HHS said in the rule. “To date, information available to CMS and OIG suggests that the waivers are adequately protecting beneficiaries and federal healthcare programs while promoting innovative structures within the shared-savings program.”
HHS noted, however, that it will continue to monitor the development of ACOs and shared-savings arrangements and could make changes in future rules if needed.
Miller said he'd like to see the waivers extended to providers outside of ACOs to further promote collaboration and innovation.
“The problem becomes if you want hospitals and physicians working together without consolidating, technically, that can be illegal today, and this enables them to do it if they're part of an ACO but not if they're outside of an ACO,” Miller said of the waivers. “You've got kind of this big gap that exists.”