Don’t let yourself get snared in gainsharing loophole
Don’t let yourself get snared in gainsharing loophole
According to Edward Kornreich, JD, an attorney with Proskauer Rose in New York City, there’s a loophole in the OIG’s July 8 advisory bulletin against hospital-physician incentive arrangements.
Kornreich says the OIG bulletin, which he considers a "shocking broadside against gainsharing," seems to leave open the possibility that the law doesn’t prohibit hospital programs that reward physicians for reducing the cost of items and services provided to hospital patients — as long as the programs don’t reward the physicians for reducing the quantity and quality of those items and services.
Kornreich argues that two potentially acceptable programs not specifically mentioned by the OIG are:
- financial incentives targeted to the use of more economical hospital supplies, such as pharmaceuticals or medical devices;
- the adoption of more efficient practices, such as scheduling and the timely preparation of charts and reports.
If you’re planning to explore this loophole, however, use caution, advises Marylou King, JD, an attorney with McDermott, Will & Emery in Washington, DC. It might work if the physician is being paid a flat fee, she says. "But if [the hospital] is paying physicians on the basis of a percentage-sharing arrangement of what’s saved, I don’t think that would be permitted."
Alwyn Cassil, a spokesman for the OIG, adds that anytime an arrangement involves a physician receiving a cut of the savings, "then there is potentially a problem, because in the view of the OIG there becomes an inducement to limit care to patients."
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