This article originally appeared on April 11, 2022 in Westlaw Today’s Thomson Reuters Attorney Analysis.
For healthcare providers and payers, changes to Stark’s law, anti-bribery law and reimbursement landscape encourage the delivery of care that considers the social determinants of health for some patient populations. Research shows that when medical care is delivered alongside non-medical services that affect health, patients, providers and the health system as a whole fare better. Social services that are not traditionally considered medical services, such as transportation and nutrition, are particularly crucial for Medicare beneficiaries who have high needs and high costs; in addition to improving health outcomes, they can also reduce costs.
In the near future, we will see more payers and healthcare providers continue to join forces to incorporate these non-medical social services into their treatment plans for certain patient populations. These social services are seen as a measured way to address the negative social determinants of health to advance overall health equity.
The social determinants of health include community factors such as the availability of high quality education, job opportunities, transportation, affordable housing, broadband internet, and healthy food. Health equity, broadly defined, is the idea that every person should have the opportunity to achieve their full health potential, regardless of their social position or other socially determined circumstances.
Realizing that these social services can reduce the cost of health care and improve health outcomes by acting on the social determinants of health, the federal government, including the Centers for Medicare & Medicaid Services (CMS), has made certain decisions legal, strategic and financial to encourage the provision of these services.
These rulings involve changes to the Stark Act, which prohibits physicians from referring certain Medicare fee-based services to an entity with which the physician has a financial relationship, barring exceptions, and the Anti-Kickback Act, which prohibits payment for referrals from federal health care program services, as well as CMS’s development of a new strategy for the next decade, and payments for social and community services for patients. The hope is that these decisions advance health equity for historically underserved patient populations and reduce costs.
Changes to Stark’s Law and Anti-Kickback Law
Legal changes to the Stark Act and the Anti-Kickback Act aim to create additional incentives for the healthcare industry to move away from volume-based healthcare delivery and payment , and turns to population health and other payment models that don’t pay. based on the volume of services rendered to a particular patient.
Generally, the health care industry viewed these laws as barriers to innovative arrangements between physicians and health care entities, such as hospitals, because they prohibited payments to physicians for anything other than the services of doctors. For example, even if a hospital knew that a doctor ordering a certain procedure or test would result in a better payment or better outcome of care, the hospital was unable to financially incentivize the doctor to do so on the basis of these laws.
In December 2020, new exceptions were added to the Stark Act and new safe harbors were added to the Anti-Kickback Act to allow payments like these under certain bribery-based agreements. value. See 42 CFR § 411.357(aa) (Stark Law Exceptions) and 42 CFR § 1001.952(ee) — (gg) (Safe Harbors Anti-Bounce). Tellingly, one of the value-based goals included in these laws involves the “transition from mechanisms of delivery and payment of health care based on the volume of items and services provided to mechanisms based on the quality of care and the control of care costs for a target population of patients.
Under the Stark Act, these value-based exceptions allow physicians and hospitals to enter into innovative agreements that have the specific goals of achieving better health outcomes for certain target patient populations. These laws make it possible to remunerate a doctor to, among other things, coordinate, manage and improve the care of a target population of patients.
Under anti-bribery law, a new safe harbor protects a value-based arrangement in which a healthcare provider gives a patient tools and in-kind supports that identify and address the determinants of a patient’s health. Such tools and supports should relate directly to the coordination and management of care for a target patient population and should advance certain goals, such as adherence to a medication or therapeutic regimen.
These goals ensure that the protected tools and supports have a strong link to care coordination, quality of care and patient health outcomes. The good news, again, is that these patient benefits and physician incentive payments are no longer illegal inducements, as long as they are offered in the context of a value-based arrangement.
Center for Medicare and Medicaid Innovation strategy update.
In fall 2021, the Center for Medicare and Medicaid Innovation Center (CMS Innovation Center) launched a decade-long strategy to achieve equitable health outcomes through high-quality, affordable, people-centered care. This strategy is based on more than 50 payment models that were launched during the first decade of the CMS Innovation Center.
Models have been started in advanced primary care, episode-based care, accountable care, state-based transformation efforts, and for specific populations, such as Medicare beneficiaries with end-stage renal disease, diabetes and heart disease. Models also include Medicaid for maternal opioid use disorders and populations that are at higher risk for preterm births.
To achieve its goal, the CMS Innovation Center has created five goals, one of which is to advance health equity by embedding health equity into all aspects of the CMS Innovation Center’s payment models and placing greater emphasis on focus on underserved populations. All new payment models:
- require participants to collect and report the demographic data of their beneficiaries and, where applicable, data on social needs and social determinants of health, and
- include patients from historically underserved populations and disproportionate safety net providers, such as community health centers and hospitals.
Other areas will be identified to reduce inequities at the population level, such as addressing avoidable hospitalizations resulting from poor health care outcomes linked to these inequities, and targets will be set to reduce these inequities. CMS has instituted penalties in some of its payment models for hospitals that continue to see high rates of readmissions.
The CMS Innovation Center is also considering a variety of incentives to encourage and sustain participation, such as payment incentives to reduce disparities or screening for social determinants of health and coordinating with community organizations to meet needs. social.
Another objective of the CMS Innovation Center is to support innovation. This will be done by leveraging a range of supports that enable integrated and person-centred care, such as actionable and practice-specific data, technology, dissemination of best practices, peer-to-peer learning collaborations and payment flexibilities.
In supporting innovation, the CMS Innovation Center aims that beneficiaries in responsible care relationships – relationships where healthcare providers are accountable for the quality and full cost of care provided – receive more integrated person-centred care, which could include support for social determinants of health and better access to home and community care.
Medicare Advantage payment for social and community services
Medicare Advantage (MA) plans participating in a Medicare value-based insurance design model are now able to offer new non-medical benefits to patients. Although MA plans may have offered additional “primarily health-related” benefits not covered by paid health insurance, these benefits were until recently narrowly defined by CMS to cover only medical and medical services. were to be available to all plan enrollees.
However, in the 2019 plan year, CMS expanded the primarily health-related supplemental benefits to include non-medical services, allowing plans to offer non-medical benefits, such as use broader transport or delivery of meals, in addition to previously authorized medical services. .
Meanwhile, with the passage of the Creating the High-Quality Outcomes and Outcomes Needed to Improve Chronic Care Act, from 2020, MA plans may offer special additional benefits for the chronically ill. Plans may choose to offer these benefits to enrollees with certain chronic conditions. , and benefits need not be primarily health-related, as long as the item or service can reasonably improve or maintain the enrollee’s health or function. These benefits that may be offered include:
- Complementary therapies.
- Pest control.
- Food and products.
- Non-medical transportation.
- Structural modifications to the house.
- Accompaniment of service dogs.
- Benefit for social needs.
- Transitional/temporary supports.
- Indoor air quality equipment and services.
Payment for these types of new services demonstrates a willingness to look beyond a patient’s presenting health issues and a desire to understand what social factors cause these issues, particularly in certain patient populations, and how to address them. Addressing these social determinants of health will continue to require innovative health care models and agreements between providers, payers and community organizations.
The result will be a continuous evolution of health care, its laws and its finances.
Takeaway: Innovating to act on the social determinants of health
The healthcare legal and payment landscape has undergone dramatic and significant changes over the past three years. Healthcare providers and payers need to consider innovative ways to care for patients and pay for that care to improve their bottom line with this change.
New opportunities in fraud and abuse laws for value-based arrangements and payments for non-medical services to address the social determinants of health have opened the door to innovation. Providers and payers need to think about how they will meaningfully participate in the healthcare industry for the foreseeable future.