OIG’s Proposed Safe Harbor Regulations Should Promote Integrated Care

The American Hospital Association (AHA) has submitted comments on the Proposed rule issued by HHS’ Office of  Inspector General (OIG) regarding (1) transportation services provided by hospitals; (2) the encouragement of follow-through on the implementation of discharge plans; and (3) the definition of prohibited inducements by physicians to reduce or limit services. The AHA believes that these changes need to be made to help hospitals fulfill the three goals of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) and other initiatives to (1) provide a continuum of care; (2) improve access to care; and (3) improve the affordability of care.

Gainsharing

Social Security Act Section 1128A(b) prohibits hospitals and critical access hospitals (CAHs) from knowingly paying physicians in order to induce them to reduce or limit Medicare or Medicaid services to people under the physician’s care. The OIG can institute civil money penalties (CMPs) when this gainsharing provision is violated. In the Proposed rule, the OIG recognized that gainsharing can be beneficial in some circumstances and sought comments on the definition of service limitation (see OIG proposes revisions to anti-kickback safe harbor provisions, October 3, 2014.)

The AHA commented that it is renewing its proposal that the gainsharing prohibition should be interpreted to mean to reduce or limit medically necessary services. “A decision by a hospital and physician to follow protocols that are based on objective quality metrics for certain procedures should not be treated as reducing or limiting services under the statute,” commented the AHA.

The AHA stated that there should be protection from participating in shared saving programs such as accountable care organizations (ACOs) and other value-based purchasing programs established by the ACA. These programs make it necessary for “hospital leaders and physicians to work together to efficiently bring patients the right care, at the right time, in the right setting,” said the AHA.

Discharge Planning

The AHA commented that access to care should be interpreted more broadly than only access to medically necessary services or items. The AHA feels the need to expand this interpretation especially since hospitals are now going to receive a financial penalty for patients that are readmitted to their hospital as required by Section 3025 of the ACA. The AHA notes that hospitals now have a vested interest in making sure that patients follow their discharge plan so that the patient is not readmitted to the hospital, and the hospital is penalized for care they did not or could not provide. The AHA commented that promoting care should include encouraging, supporting or helping patients access care. The AHA argued that hospitals should not have to be concerned about facing penalties for providing scales, blood pressure monitors, and contacts by clinicians by either phone or other electronic devices to ensure that patients are following and implementing their discharge plan.

Transportation Services

The AHA thinks that limiting transportation services to “established patients” with a distance of not greater than 25 miles is too limited. The first problem the AHA noted is that CAHs and sole community hospitals would not be included, as by definition they are required to by 35 miles or more nearest like facility. Secondly, the AHA says it would be difficult to screen-out “established patients” from first time patients as they are boarding a shuttle or other transportation services. This limitation may “unreasonably prevent a hospital from assisting a beneficiary in keeping a critical first appointment,” said the AHA.

In addition the AHA said the Proposed rule is unclear as to whether transportation services to a provider other than the hospital are included. The AHA feels that providing transportation to other providers is necessary in some cases to ensure that patients are following their discharge plan and are receiving sufficient care to avoid rehospitalization.

The AHA is in agreement with the OIG for taking this step to alter its Anti-Kickback and Civil Money Penalty regulations so that they are more in conformance with changes in how care is delivered. AHA Executive Vice President Rick Pollack said, “Congress recognized this and made modest changes four years ago in the Affordable Care Act, which are, in part, the subject of the OIG’s regulatory proposal.”  The AHA stated that many of its comments were provided in response to the OIG’s request for comments on specific topics and looks forward to working with the OIG to develop specific proposed language on these topics that would also be subject to a comment period.