Thought Leaders’ Corner: Amendments to the Gainsharing Rules and Their Effects on ACOs

Accountable Care News May 2015

Doug Hastings, Chair Emeritus of the Firm, based in the firm’s Washington, DC, office, authored a thought leadership article discussing the options to amend the gainsharing rules and how the changes might affect accountable care organizations.

The following appeared in Accountable Care News:

Q. Section 512 of the legislation repealing the SGR calls on the Secretary of HHS in consultation with the Inspector General to review and make recommendations to Congress in 12 months on options to amend the gainsharing rules. Could this be a big deal for ACOs? How might it affect CMS revenue paid to ACOs? How would you amend the rules?

Doug Hastings wrote:

Section 512 is additional evidence that the message is getting across to Congress that fraud and abuse laws now on the books need to be further reconciled with the move to value-based payments. Section 512(a) is immediately helpful by amending the Civil Money Penalty Statute to lessen the absurd possibility that a hospital would be penalized for gainsharing with physicians to reduce medically unnecessary services. Section 512(b) calls for the report to Congress regarding options for further amendments to permit gainsharing “that improve care while reducing waste and increasing efficiency.” Such further amendments, depending on their scope, could be particularly useful to ACOs in the commercial market that do not benefit from the current waivers to certain of the fraud and abuse rules that are applicable to Medicare ACOs only. As with all such regulatory guidance, however, I would expect any further exceptions or safe harbors to the fraud and abuse rules to be quite narrow, leaving continued challenges in interpretation and uncertainty as to compliance in real world applications. Nevertheless, continued attention by the regulators to these challenges and their attempts to update their enforcement protocols to address changing circumstances is a good thing.