Ask the Experts: The Impact of Stark, Anti-Kickback Laws on ACOs

How are ACOs managing the Stark Law and Anti-Kickback Statute? It seems that these laws would hinder some of the collaboration and referrals required by an ACO. Do you foresee any changes to these laws as a result of ACOs and other calls for care coordination?

Answer 1: The Federal Trade Commission (FTC) has published antitrust policies for accountable care organizations (ACOs).

Because Medicare Part A and B beneficiaries are free to seek healthcare services from any participating provider―whether the provider is part of an ACO or not―I would think that prohibitions against self-referrals (prohibiting physicians from referring patients for certain designated health services to an entity with which the physician or member of the physician’s immediate family has a financial relationship) and kickbacks (making it a criminal offense to “knowingly and willingly offer, pay, solicit, or receive any remuneration to induce, or, in return for referrals of items or services”) remain in place and are vigorously enforced.

Section 3 of the Medicare Shared Savings Program (MSSP) ACO application form states that if the ACO is “newly formed,” a copy of the application―including all information and documents submitted with the application―must be submitted to the FTC and the Antitrust Division of the Department of Justice (DOJ).

Per the FTC’s October 2011 press release, the FTC-DOJ enforcement policy is meant to ensure that ACOs―MSSP and commercial―are “procompetitive” and “benefit both Medicare beneficiaries and patients with private health insurance, while protecting healthcare consumers from higher prices and lower quality.”

The FTC maintains a watchful eye over price fixing (unreasonable constraint of competition) and market power (monopolization of a market).

This question was answered by: Christoph Stauder, FHFMA, CPA, president, Stauder Consulting, LLC, and a member of HFMA’s Oregon Chapter.

Answer 2: I recommend legal opinions for any questions regarding Stark and Ant-Kickback laws surrounding ACOs. In general, exemptions were initially established in October, 2011 for relationships between ACO participants, and then again in October 2015, the Centers for Medicare & Medicaid Services published a final rule that included five applicable waivers for MSSP ACOs, and in 2016, additional guidance to the Stark Law. Thus, as care coordination and ACO participation continues to evolve, I anticipate there will be additional changes.

This question was answered by: David A. Williams, FHFMA, CPA, partner, Horne LLP, and a member of HFMA’s Mississippi Chapter.

The information provided through the Forum’s Ask the Expert service does not constitute legal advice, even when the advice is provided by lawyers. You need to obtain your own legal counsel for legal advice, and consider the laws and regulations that govern your state. The content and opinions expressed are those of the Forum experts, and not that of their employers or of HFMA. HFMA does not endorse the material or warrant or guarantee its accuracy. The responses are based only on the specific facts or circumstances provided. Forum experts cannot be held liable for outcomes related to any information provided.

Pose another question to our Legal & Regulatory Forum experts.