Doctors and hospitals have voiced support for the Trump administration's efforts to encourage value-based care by reforming physician self-referral rules, but they oppose including any sort of price transparency requirements.
The CMS wants to change Stark law regulations to make it easier for providers to enter into value-based arrangements without running afoul of kickback concerns. It proposed lowering barriers to care coordination and management. Comments on the proposed rulemaking were due Tuesday.
The Stark law was initially put in place to prevent physicians from profiting off referrals to Medicare providers that they or a family member had a financial stake in. While those rules made sense under traditional, fee-for-service Medicare, providers have been spooked that the government could come down on them for participating in value-based arrangements even if they don't receive financial benefits from referrals.
Creating permanent exceptions for value-based arrangements could encourage more providers to join value-based arrangements because they won't face potential financial penalties, commenters said.
The American Medical Group Association "is supportive of these exceptions, which would allow providers to take more innovative approaches in their financial arrangements while encouraging and removing barriers to value-based care," Dr. Jerry Penso, president and CEO of AMGA, wrote in a comment.
While employers similarly supported the exceptions where providers take on meaningful risk, they worried that avoiding physician self-referral penalties at any level risk could boost fraud and abuse without encouraging participation in value-based payments. They don't think it's worth the trade-off.
"Arrangements that do not have meaningful downside risk significantly weaken the safeguards against fraud and abuse afforded by the regulations banning physician self-referral," said Brian Marcotte, CEO of the National Business Group on Health.
It could even undermine the government's efforts to get providers to take on more risk if doctors and hospitals can get the exception with low levels of risk.
Providers are on board with the Trump administration's proposal to allow most types of remuneration because it would allow for more flexibility in the design of value-based arrangements, which could make them easier to create. They opposed changes that would only allow non-monetary compensation.
"This alternative would greatly restrict the flexibility of this exception and would unduly limit many commonplace value-based arrangement structures, such as financial incentives to adhere to care protocols and shared-savings models," the American Hospital Association wrote in its comments.
Hospitals and physician groups were especially supportive of permanently allowing donations of electronic health records and cybersecurity technology, including hardware and training.
"There may be instances where hardware is too outdated to be able to run certain software or may be unable to allow security features such as biometric screening or multifactor authorization," said Dr. David Hoyt, American College of Surgeons' executive director. "In these cases, the hardware would be a foundational requirement for the use of the cybersecurity product."
Doctors and hospitals also supported removing the 15% recipient requirement for small and rural practices. Still, many of them wanted it to apply to more providers because they think it will encourage greater participation in value-based care.
But they were uniformly opposed to tying any form of price transparency to Stark law exemptions, which the Trump administration is considering for each value-based care exemption. The requirements could force providers to give patients information about their out-of-pocket costs for referred items and services. Providers have fiercely opposed most of the administration's price transparency efforts.
"Such requirements would not serve the purpose of the Stark law, which is to promote untainted medical decisionmaking by providers, not value-based decisionmaking by consumers," wrote Dr. Bruce Siegel, president and CEO of America's Essential Hospitals.
Doctors and hospitals also asked the CMS to reconcile it's proposed Stark law changes with HHS' Office of Inspector General's updates to the anti-kickback rules to avoid regulatory and legal uncertainty.
