Comments: Medicare Anti-Kickback Statute and Beneficiary Inducements CMP Request for Information

The Medicare Rights Center (Medicare Rights) appreciates the opportunity to comment on the Office of the Inspector General’s (OIG’s) Medicare Anti-Kickback Statute and Beneficiary Inducements CMP Request for Information. Medicare Rights is a national, nonprofit organization that works to ensure access to affordable health care for older adults and people with disabilities through counseling and advocacy, educational programs, and public policy initiatives. Medicare Rights provides services and resources to three million people with
Medicare, family caregivers, and professionals each year.

Changes in the way Medicare providers deliver care are an important aspect of the switch to value-based care. Providers point to certain statutes like the Anti-Kickback Statute and supporting regulations as limiting their ability to innovate effectively by generally forbidding waivers of co-payments or deductibles, strictly policing “fair market value” in terms that may not be fully congruent with health services, and banning remuneration that may influence the beneficiary’s choice of provider or practitioner. The penalties for violation can be severe, from criminal and civil monetary penalties (CMPs) to denial of participation in Medicare, and fear of these repercussions could potentially hamstring providers who seek innovative partnerships, incentives, or strategies to reduce costs and increase beneficiary engagement or adherence to treatment.

However, it is vital to acknowledge how important robust consumer protections are to ensure that beneficiaries are not penalized through higher costs, poor or unnecessary care, or other occurrences that reduce the quality, accessibility, convenience, transparency, or affordability of their care. There must be robust oversight and enforcement of beneficiary protections to ensure both the program and the people who need it are safe.

We encourage OIG and CMS to explore the ways bad actors may use current or new structures to take advantage of programmatic rules or beneficiaries. We urge CMS to consult with policy and legal experts and, especially, with consumers to better understand how systems may be gamed and what impact that may have on beneficiaries.1 Ultimately, people with Medicare suffer when loopholes and poor incentives are permitted.

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