David Harlow quoted on gainsharing in Medicare Compliance Alert

There’s an article on the latest gainsharing advisory opinions from the OIG in the latest issue of DecisionHealth’s Medicare Compliance Alert (copyright Medicare Compliance Alert 2008, reproduced here by permission).  I’m quoted in there in connection with the pending gainsharing demonstration projects.

I’ll go out on a limb here and take issue with the conclusion in the article regarding some of the Stark 2.5 language in the 2008 MPFS preamble.  Specifically, the preamble says:

we are proposing to clarify that percentage compensation arrangements: (1) May be used only for paying for personally performed physician services; and (2) must be based on the revenues directly resulting from the physician services rather than based on some other factor such as a percentage of the savings by a hospital department (which is not directly or indirectly related to the physician services provided).

72 FR 38184 (July 12, 2007), middle column.  The article warns that the new Stark rules (if and when promulgated) may well put the kibosh on gainsharing, but I don’t read this portion of the commentary as requiring that conclusion, because the hospital savings shared with physicians through gainsharing programs are, by definition, clearly related to physician services, and thus saved by the parenthetical at the end of the quoted section of commentary above. 

Thanks to the ever-changing timeframes for regulations and effective dates in this area, the Stark story is not over yet.

— David Harlow