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New Anti-Kickback Law 'Safe Harbors' Proposed

By Francis J. Serbaroli

Within the dense and complex Patient Protection and Affordable Care Act (ACA) are significant provisions that are intended to incentivize health care providers to furnish better quality care at lower costs, and conversely, to penalize providers for poor-quality care or care that was not medically necessary. The problems of poor-quality or unnecessary care were caused, in part, by the fee-for-service payment system that was in effect for generations. The fee-for-service model unfortunately offered the wrong incentives to dishonest or poor-quality providers to maximize revenue by maximizing services regardless of the quality or the medical necessity of the services provided.

As our payment systems have moved away from the fee-for-service model, however, a kind of Catch-22 has developed whereby certain types of incentive payments and business arrangements that would improve the quality of care and provide needed assistance to indigent patients could actually run afoul of the federal fraud and abuse laws, including the Anti-Kickback Statute (AKS) (42 U.S.C. ' 1320a-7b(b)), and potentially trigger their drastic penalties.

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