It’s no secret that the world of health-care payments is changing, transitioning from a fee-for-service approach to a value-based model designed to share cost savings among physicians and hospitals. While existing regulations can restrict the full deployment of these so-called gainsharing arrangements, a pending final rule would ease the obstacles.

The Health and Human Services Office of Inspector General’s final rule, which is under review at the White House Office of Management and Budget, would also make it easier for providers to offer free services to patients without running afoul of the anti-kickback statute. Kevin McAnaney, an attorney with the Law Offices of Kevin G. McAnaney in New York, told me that easing restrictions on offering free services could have a major impact on alternative payment models, allowing physicians to provide free services to patients to promote better access to care.

However, McAnaney said the provisions concerning gainsharing arrangements were unlikely to have much of an impact, as the Medicare Access and CHIP Reauthorization Act (MACRA) of 2015 already made such arrangements easier to use. Prior to MACRA, hospitals were prohibited from paying cost-savings bonuses to doctors that could induce reduced or limited services to patients, even if the services were medically unnecessary. MACRA revised the wording of the gainsharing civil monetary penalty to prohibit only payments made for reducing or limiting medically necessary services.

The proposed rule revising both gainsharing arrangements and beneficiary inducements was published in October 2014. The rule would also add new safe harbors to the anti-kickback statute for some Medicare Part D activities.

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