In October, the Office of Inspector General issued a report on Fraud and Abuse Training in Medical Education, finding that 44% of medical schools reported giving some instruction in the anti-kickback statute and related laws, even though they weren't legally required to do so. (As an aside, do we really live in such a nanny state? Over half of all medical schools don't teach their students anything about this issue — because nobody's making them — even though it is an issue that looms large in the practice of medicine.) On a more positive note, about 2/3 of institutions with residency programs instruct participants on the law, and 90% of all medical schools and training programs expressed an interest in having dsome instructional materials on the subject of the anti-kickback statute, physician self-referrals (Stark) rules and the False Claims Act.
So in November, the OIG released a Roadmap for New Physicians – A Guide to Avoiding Fraud and Abuse, available on line and as a PDF. It is a good 30-page primer on the subject. While some of the examples given are specific to newly-minted physicians, anyone in the health care industry would benefit by reading it. The document offers a window into the thinking of the OIG, its perspective on the wide range of issues summarized within, and is a good touchstone for any individual or organization seeking to structure a relationship that needs to stay within the bounds of these laws.
Of course, since so much may be changing under the Affordable Care Act, this document may be ripe for revision next year. For example, the Accountable Care Organization regulations are due to be released in draft form before year-end, and they are expected to include new proposed exceptions and/or safe harbors under these rules. (Though based on some recent news reports of internal disputes on implementation, one wonders whether the ACO rules will be issued in a timely fashion.) As payment methodologies move further in the direction of value-based purchasing encompassing bundled and global payments with quality incentives, and provider organizations move further in the direction of the ACO and the patient-centered medical home, the fraud and abuse and self-referral rules, intended as a brake on bad behavior in the context of fee-for-service medicine, become less relevant — and even become an impediment — to new systems of care and new systems of financing of that care.
Well, following the recent midterm elections, we are now all entering a period of uncertainty, living up to the supposed Chinese curse: "May you live in interesting times." (A related supposed Chinese curse: "May you come to the attention of those in authority." Hmm.)
David Harlow
The Harlow Group LLC
Health Care Law and Consulting
