HHS Finds That Fraud and Abuse Laws Impeded Gainsharing Arrangements, But Offers No Solution

The Department of Health & Human Services (HHS) released a report to Congress assessing the impact of fraud and abuse laws on gainsharing arrangements and other similar arrangements between physicians and hospitals.

In the report, HHS recognized that the federal Anti-Kickback Statute and Stark law banning physician self-referrals are “an impediment to robust, innovative programs that align providers by using financial incentives to achieve quality standards, generate cost savings, and reduce waste.” HHS concluded that those laws make it significantly harder to structure an effective gainsharing or similar arrangement between physicians and hospitals.

Unfortunately, while HHS had hoped to present options for amending anti-kickback or anti-self-referral laws to make such arrangements easier to implement, the report failed to provide any legislative or regulatory options for consideration.

The report confirms HHS’ position that a previously proposed exception to the fraud and abuse laws, broadly allowing for gainsharing arrangements, would be futile.