Two new final rules from the federal government could help behavioral health organizations pursue value-based care agreements and partner with hospitals and health systems down the line.
The rules in question modernize the federal Anti-Kickback Statute and the Physician Self-Referral Law, also known as Stark Law. The Department of Health and Human Services Office of Inspector General (HHS-OIG) and the Centers for Medicare and Medicaid Services (CMS) released the rules on November 20, 2020.
Among other things, they’re intended to reduce barriers to value-based reimbursement (VBR) and care coordination, accelerating health care’s transformation from a volume- to value-based model.
For the most part, the rules take effect January 19, 2021. Behavioral health providers will start to see some of the rules’ impacts right away.
“Most immediately, under the new safe harbor provisions, behavioral health providers will be freer to provide patients with certain tools and supports to address issues related to social determinants of health that improve quality of life, health outcomes and adherence to treatment regimens,” attorney Matt Wolfe, partner at Parker Poe, told Behavioral Health Business.
The anti-kickback final rule will also provide new safe harbor protections to allow for donations of cybersecurity technology and services, including hardware; modifications to rules around electronic health records and services related to cybersecurity and interoperability; outcomes-based payments and part-time arrangements; increased mileage limits for transport of patients discharged from inpatient facilities; and, arguably most importantly, value-based arrangements that foster better coordinated and managed care.
“OIG’s new safe harbor regulations are designed to facilitate better coordinated care for patients, value-based care and improved cybersecurity, while also protecting against fraudulent or abusive conduct,” Christi A. Grimm, principal deputy inspector general, said in announcing the rules.
While Wolfe believes that the AKS statute modifications will help behavioral health providers better serve their patients and clients, he also cautioned providers to review applicable state law, as there could likely be state-specific laws that conflict with federal regulations.
“When in doubt, ask an attorney,” he said.
Similarly, revisions to the Stark Law are intended to break down some of the barriers to value-based reimbursement models. At the same time, the rule continues to protect patients from unnecessary services and from being directed to less convenient, lower quality or more expensive services because of a physician’s self-interest.
In other words, this final rule preserves the spirit of the law while also modifying some of the regulations that were appropriate in a fee-for-service world but hinder progress toward value-based arrangements, Nathanial Weiner, vice chair of the behavioral health law group for the law firm Polsinelli, told BHB.
Plus, it creates new partnership opportunities for providers, according to Weiner’s colleague Neal Shah, an attorney and shareholder at Polsinelli.
“The new rule presents behavioral health providers with greater opportunities to partner with hospitals and other providers in ways that previously were not permitted,” Shah told BHB.
“VBR arrangements are very complex, and while the rule changes give greater flexibility to providers, they do not offer a blank check,” he said. “There are important limitations.”
As to whether the new rules will accelerate the pace at which providers engage in value-based arrangements, that remains to be seen.
Most VBR contracts are risk-based, with rewards tied to measurable outcome data. The challenge for all stakeholders is agreeing on what those outcome metrics should be and how they should be measured.
That’s a tall order in behavioral health. Currently, the industry largely lacks a standardized set of data points. While ER visits, hospitalization rates and follow-up visits are widely accepted measures, variation is a theme for each payer and each VBR contract’s data reporting requirements.
Still, it’s a start, according to Weiner.
“Providers are moving towards value-based reimbursement at a glacial pace,” he said. “The removal of anti-kickback and self-referral barriers will encourage providers to consider value-based arrangements. But, don’t expect the glacier to turn into a river just yet.”
All three attorneys agree that, at this juncture, providers should review the agreements they already have in place to ensure full compliance with the new rules, while also re-evaluating their business strategies and considering partnerships that weren’t previously possible.
You can read the final rules here and here.
Written by Corinne Kuypers-Denlinger
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