In a recent Advisory Opinion, the Department of Health and Human Services (“HHS”) Office of the Inspector General (“OIG”) stated that, although the Arrangement would generate prohibited.
To embed, copy and paste the code into your website or blog:
Last week, OIG posted Advisory Opinions Nos. 21-03, 21-04, and 21-05 relating to three near-identical arrangements between Medigap plans and Preferred Hospital Organizations (PHOs). The arrangements involve (i) a discount on a policyholder’s Medicare Part A deductible, (ii) a policyholder premium credit, and (iii) a monthly administrative fee to the PHOs. The arrangements are designed to incentivize the Medigap plans’ respective policyholders to seek inpatient care from a hospital within the applicable PHO network. Although OIG determined that the arrangements would generate prohibited remuneration under the federal Anti-Kickback Statute and the Beneficiary Inducements Civil Monetary Penalties (CMP) law, OIG concluded that the arrangements pose a sufficiently low risk of fraud and abuse and that OIG would not impose administrative sanctions under those laws in connection with the proposed arrangements.
Predictions in the current antitrust, regulatory and legislative environments are hard – there is just too much happening. The better insights might be reached by thinking through what the bigger questions might be for example, some things to think about as we approach 2021 and contemplate where a new administration in Washington and evolving antitrust enforcement regimes and priorities will take the health care industry. Will the FTC continue to pursue health system and hospital mergers and affiliations aggressively, as it did in 2020? Will its loss in the Eastern District of Pennsylvania, regarding the Jefferson-Einstein merger, be upheld on appeal? Or will the “market realities” aspect of market definition cause the FTC to refocus its efforts and analysis?