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OIG Proposes Exceptions to Anti-Kickback and CMP Rules

The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services issued a proposed rule Oct. 2, amending fraud and abuse regulations that govern health care programs including the Medicare and Medicaid programs. If finalized, the rule would add multiple exceptions to the anti-kickback and civil monetary penalty (CMP) regulations.

The proposed changes to the anti-kickback regulations include a technical correction to the safe harbor for referral services, protection for some types of cost-sharing waivers, and protection for free or local transportation services if certain conditions are met.

Proposed changes to the CMP regulations include the following:

  • OIG proposes to codify multiple exceptions to the definition of “remuneration,” including “any remuneration which promotes access to care and poses a low risk of harm to patients and Federal health care programs.” OIG proposes to define the phrase “promotes access to care” as “improv[ing] a particular beneficiary’s ability to obtain medically necessary health care items and services” but is seeking comment on whether to interpret this more broadly to accommodate the increasing number of coordinated and integrated care arrangements that should be exempted from civil penalties.
  • OIG proposes to add a gainsharing CMP provision, which prohibits a hospital from paying a physician as inducement to reduce or limit services provided to Medicare or Medicaid patients. In light of the new focus on high-quality care at lower cost, OIG is proposing to narrowly interpret the phrase “reduce or limit services,” but seeks comment on how to define it. OIG notes that it does not believe the statute permits it to interpret the gainsharing provision as applying only to reductions of medically necessary services.

Comments to OIG are due by Dec. 2, 2014. Please contact Xiaoyi Huang, JD, director of policy, at xhuang@essentialhospitals.org or 202.585.0127 with any questions.

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About the Author

Shahid Zaman is a senior policy analyst at America's Essential Hospitals.