by Ray Foxworth, D.C., FICC, MCS-P
President & Founder, ChiroHealthUSA
On November 20, 2020, the Department of Health and Human Services (HHS) Centers for Medicare and Medicaid Services (CMS) issued the final rule, “Modernizing and Clarifying the Physician Self-Referral Regulations” (Final Rule). The new rule aims to reduce regulatory barriers to care coordination and accelerate the transformation of the healthcare delivery system into one that rewards value instead of volume. HHS describes four key improvements:
- Helps patients better understand their treatment plans and empower decision making.
- Encourages provider alignment along an end-to-end entire care continuum.
- Improves incentives for providers to collaborate and encourages patient involvement.
- Encourages information sharing among providers while protecting patients’ access to data.
When the Stark laws were first enacted (1989), the healthcare delivery system was almost entirely fee-for-service and rewarded care models tied to utilization, rather than outcomes. The original Stark rules were designed to prevent physicians from self-dealing and ordering unnecessary services. With the passage of the Affordable Care Act in 2008, CMS introduced several new care delivery and payment models designed to promote better patient outcomes and reduce cost. (Faegre Drinker, 2020)
The new value-based exceptions include a carefully woven fabric of safeguards to ensure that the Stark Law continues to provide meaningful protection against overutilization and other harms. These final policies recognize that incentives are different in a healthcare system that pays for the value rather than the volume of services provided. In response to stakeholder comments on the proposed rule and the Request for Information, the final rule provides additional guidance on several key requirements that must often be met for physicians and healthcare providers to comply with the Stark Law. For example, a physician’s compensation by another healthcare provider must generally be at fair market value. The final rule provides guidance on how to determine if compensation meets this requirement. The final rule also provides clarity and guidance on a wide range of other technical compliance requirements intended to reduce the administrative burden that drives up costs. (CMS, 2020)
For years, we have been moving towards price transparency in healthcare. Continuing its’ objectives to improve price transparency, CMS considered whether to add to all proposed value-based arrangement exceptions, a requirement that physicians provide notice or have a policy requiring physicians to alert patients that their out-of-pocket costs for items and services referred by their physicians may vary based on the site where the services are furnished and based on the type of insurance they have.
In the Final Rule, CMS stated it received comments from both health care consumers and entities that provide health care services. Nearly all commenters were united in their support that patients have access to clear, accurate cost-sharing information. However, CMS did not finalize any price transparency provisions in the Final Rule. Although this new guidance will bring about better collaboration for patient care and limit risks, we must seek guidance from a healthcare attorney before entering into any agreements or partnerships to ensure we do not create more risks for our practice.