Bass, Berry & Sims attorneys Stewart Kameen and Jennifer Michael authored an article for the American Health Law Association’s (AHLA) Payers, Plans and Managed Care Practice Group examining a recent unfavorable opinion by the Department of Health and Human Services (HHS) Office of Inspector General (OIG) related to a Medicare Advantage (MA) organization’s proposal to enter into a gainsharing arrangement with certain employer groups. Although OIG declined to approve the proposal, the decision does not completely close the door on gainsharing arrangements in the managed care space.
The authors note, “OIG found that the proposed arrangement would implicate the AKS because the requestor would offer remuneration to [certain employer] Groups, in the form of the potential to share in the requestor’s savings, that could induce the Groups to refer individuals to the requestor’s EGWP [Employer Group Waiver Plan].” OIG determined that this risk of steering, combined with the proposed arrangement’s potential to result in fewer benefits for the Groups’ enrollees and negatively impact competition increased the risk of fraud and abuse under the AKS.
While this specific decision was unfavorable, the authors note that “OIG made sure to remind stakeholders that EGWPs are afforded a number of flexibilities and that its unfavorable conclusion in these specific facts and circumstances does not mean that other payment arrangements necessarily would violate the AKS.”
The full article, “HHS-OIG Declines to Approve Proposed Gainsharing Arrangement Involving Managed Care Organizations,” was published by AHLA on December 19 and is available online (subscription required).