Policy & Regulation News

AHA Reacts to Proposed Anti-Kickback Statute Revisions

By Stephanie Reardon

AHA Executive Vice President Rick Pollack issued comments describing the statute as “outdated regulatory barriers.”

- The American Hospital Association (AHA) is speaking out against the Office of Inspector General’s (OIG) proposed revisions to the federal Anti-Kickback Statute. AHA Executive Vice President Rick Pollack issued comments describing the statute as “outdated regulatory barriers.”

The Anti-Kickback Statute is a criminal statute that prohibits the exchange of anything of value (paying or offering to pay healthcare workers) in an effort to induce the referral of federal healthcare program business (e.g., Medicare, Medicaid), and was originally put in place in 1972. In the years since the establishment of the statute, it has received a multitude of updates and revisions as healthcare evolved and changed.

The AHA stressed the need for the OIG to change or alter its interpretation of the gainsharing civil monetary penalty (CMP) rules which currently, as Pollack puts it, “potentially penalizes any change in a physician’s prior practice regardless of whether it is in service of improving quality, access or affordability.”

The AHA expands on the difficulties brought upon healthcare providers:

  • Providers Fear Growing Uninsured Rate to Keep Patient Volumes Down
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  • It would be difficult for hospitals to advance programs involving quality and efficiency incentives if the adoption of objection metrics could be deemed to cause a violation. In practice, adherence to objective metrics — including the Physician Quality Reporting System quality measures and other metrics utilized by the Centers for Medicare & Medicaid Services — will, on a frequent basis, lead to change in a physician’s practice.

    The AHA is claiming that OIG’s interpretation of the CMP rules may also threaten the triple aim, the process of hospitals adapting to the changing healthcare environment by providing a continuum of care to improve quality, access and affordability.

    Additionally, the association warns that the OIG’s revisions are too limiting and would not provide the appropriate level of flexibility to healthcare professionals required to provide the best possible care for their patients. The outdated portions of the revisions would make it difficult for hospitals and healthcare providers to provide after care for their patients such as emergency transportation, and necessary medical supplies to keep up with the status of their patient’s health.

    “Allowing transportation for only an ‘established patient’ is too limiting,” Pollack writes, “Requiring that transport be a distance no greater than 25 miles will potentially prevent Medicare beneficiaries living in rural areas from accessing needed care. The distance limit also could affect Medicare beneficiaries’ receipt of the right care at the right time and in the right place.”

    Pollack maintains that OIG should take swift action to remedy this obstacle, one that OIG has received notice of over the years.

    “This literally can mean the difference between a patient receiving or not receiving necessary care,” he writes. “Hospitals also need the ability to provide other types of post-discharge and post-hospital outpatient care support to better enable beneficiaries to follow-through on their post-care plans, whether it is continuing a course of care, electronic monitoring, maintaining a medication regimen or taking steps to maintain or improve their health status.”