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Will the OIG make changes to the anti-kickback statute?

The law is always evolving. This is true whether discussing tax law, family law or the laws that impact health care. The tax code, for example, was the subject of the largest overhaul in recent history with the passage of the Tax Cuts and Jobs Act at the end of 2017.

This broad change to an area of law that is generally slow to evolve has led to questions about which laws could be next. Is it possible for such large reform within the laws that impact health care? The government has recently taken steps to indicate this could be possible.

What indications are present health care law could undergo reform? The Department of Health and Human Services' (HHS) Office of the Inspector General (OIG) recently called the public to provide information on the anti-kickback statute.

The Federal anti-kickback statute was passed to reduce the risk of corruption within the medical profession by allowing criminal penalties for those who knowingly "offer, pay, solicit or receive remuneration to induce or reward the referral of business reimbursable under Federal health care programs" like Medicare. It appears the government is reevaluating this law.

What is the government's goal? According to the Office of the Federal Register, the goal is to coordinate a Regulatory Sprint to Coordinated Care. This "Regulatory Sprint" is designed to help better ensure patients receive high value medical care.

How will the government achieve this goal? The OIG is currently considering modification or addition of safe harbors to the anti-kickback statute. The agency has noted that the broad reach of the anti-kickback statute and civil monetary penalties for violations has served as a "potential impediment to beneficial arrangements that would advance coordinated care." Medical professionals that work together to provide quality care to patients could find themselves wrongly accused of ill intentions in violation of this federal law.

Will this lead to change? Possibly. At this time, the government has called for the public to provide comments on the issue through October 2018. It will likely review the comments before deciding to move forward with any proposals for change.

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