The Office of Inspector General (OIG) of the Department of Health and Human Services published a major proposed rule on October 3, 2014 amending the Anti-Kickback Statute (AKS) safe harbors and the Civil Monetary Penalty (CMP) rules to protect a number of payment practices not previously allowed under those regulations. The proposed rule and the effects it would have on the AKS safe harbors and CMP rules are analyzed in a client alert written by Reed Smith attorneys Elizabeth Carder-Thompson, Scot Hasselman, Bob Hill, Carol Loepere, Paul Pitts, Sal Rotella, Susan Edwards, Katie Hurley, and Katie Pawlitz, and senior health policy analyst Deb McCurdy.
Among the payment practices that would be covered by the amended AKS safe harbors are certain cost-sharing waivers, manufacturer discounts for drugs provided to Medicare Coverage Gap Discount Program beneficiaries, and certain free or discounted local transportation services incentives. In addition, the CMP rules would clarify the definitions of “remuneration” to allow for, among other things, decreased copayments for certain hospital outpatient services, certain retailer reward programs, and waivers of copayments for the initial fill of a generic drug. The proposed rule also includes a proposal to codify the “gainsharing” CMP rule, which prohibits certain hospitals from intentionally compensating physicians to reduce or limit services to Medicare or Medicaid patients.
The authors note that a rule of this nature appears to be an acknowledgment by the OIG that the evolution of health care delivery in the United States has required the agency to become more flexible in regards to enforcing certain aspects of fraud and abuse regulation.
Comments on the proposed rule are being accepted by the OIG through December 2, 2014.
To read the client alert, click here.