Physicians, hospitals welcome Stark law changes, but not with transparency link
PROVIDER GROUPS are eager for the CMS to reform physician self-referral rules, but they oppose linking changes to any 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. A proposed rule released in October recommended lowering barriers to care coordination and management. The comment period closed last week.
While the Stark law made sense under 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 would lead to providers taking “more innovative approaches in their financial arrangements,” AMGA CEO Dr. Jerry Penso wrote in a comment.
Employer groups similarly supported the exceptions where providers take on meaningful risk, but they worried that removing penalties at any level of 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 designing 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.
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 uniformly opposed 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 decision-making by consumers,” wrote Dr. Bruce Siegel, CEO of America’s Essential Hospitals.
Provider groups also asked the CMS to reconcile its proposed Stark law changes with HHS’ Office of Inspector General’s updates to the anti-kickback rules to avoid regulatory and legal uncertainty.
Changes in anti-kickback and physician self-referral rules could open opportunities for new business models and players, say retailers, which have increased their presence in the healthcare delivery system in the past several years but struggled to adapt to a regulatory environment designed for the establishment.
Retailers want the OIG to broadly define who can participate in value-based enterprises, including retail pharmacies and suppliers, and entities under common ownership.
“There are opportunities to improve care through more coordination across Walmart pharmacies and clinics through medication adherence,” wrote Sean Slovenski, senior vice president of Walmart Health and Wellness.
In its proposed anti-kickback rule, HHS’ OIG expressed concern that entities with common ownership might churn patients through multiple care settings to maximize financial returns.