Fostering Healthcare Reform Through a Bifurcated Model of Fraud and Abuse Regulation

February 2012

Journal of Health & Life Sciences Law

As exemplified in the Affordable Care Act, health care reform aims to combat fraud and abuse and promote new payment and delivery models. However, these aspects of reform are fundamentally incompatible, as the existing fraud and abuse regime, designed to protect care delivery in a fee-for-service (FFS) environment, is inhospitable to new integrated delivery models. To achieve balanced reform, government must transform its enforcement approach to both protect against fraud and abuse and promote a fertile environment for delivery system innovations. Through its expansive use of its waiver authorities in connection with the Medicare Shared Savings Program (MSSP), the government has granted accountable care organizations (ACOs) unique regulatory treatment. This article discusses the extension of this regulatory approach to other initiatives, such as bundled payment models and patient-centered medical homes (PCMHs), to create a bifurcated system of fraud and abuse whereby integrated delivery models and traditional FFS based arrangements are subject to distinctive regulatory treatment. The bifurcated model would advance the fraud and abuse goals of deterrence and proportionality while ensuring the success and sustainability of integrated delivery models envisioned in the Affordable Care Act.

Health lawyers Julie Kass and Jack Linehan offer a detailed discussion in the Journal of Health & Life Sciences Law, a publication of the American Health Lawyers Association.

View the article here.