The OIG has now issued a total of ten gainsharing advisory rulings, all with respect to programs set up by Goodroe Consulting (now a division of VHA).  This week,’s Government News of the Week spoke with Paul Danello at Squire Sanders & Dempsey, who asks: Why not just add a gainsharing safe harbor to the regs?

Well, why not?  After all, the advisories aren’t all that different from each other, and there are clear guidelines that OIG has adopted and applied in each of them.   The federales solicit suggestions for new safe harbors each year, so why not actually promulgate one?  Also, the OIG has actually gone this route in the past: last time I can think of is 7-8 years ago, though, when the ambulance restocking advisories (see examples linked to from the OIG advisory opinion index) gave way to an ambulance restocking safe harbor.  More recently, the OIG has adopted safe harbors in response to specific statutory authority (e.g., EHR funding safe harbors).

On the other hand: (1) One fact of life associated with going the safe harbor route is that the OIG simply cannot accommodate all potential permutations in a safe harbor.  (2)  This whole line of advisory opinions is essentially based on a single data set in a single specialty (cardiology).  Should the regs be changed to accommodate this narrow slice of medical practice?  (3) Don’t the federales have bigger fish to fry when it comes to uniform central planning for regulation (or deregulation) of pay for performance in health care in this country?

Each of the approved gainsharing programs is to last for 12 months.  The not-quite-yet-approved gainsharing demonstration projects are supposed to last for three years.  While the private sector certainly has plenty of P4P projects up and running already (consider Leapfrog and — this week’s poster child — the MA BCBS plan highlighted by Paul Levy at Running a Hospital), I expect our friends on the Potomac will not be quite so sanguine about passing the P4P reins entirely over to the invisible hand — or at least not quite yet.

David Harlow