Issue link: https://beckershealthcare.uberflip.com/i/731691
36 POPULATION HEALTH A wholesale rewrite of Stark would be preferable, but that may not be attainable, according to Mr. Luke. At a minimum, new exceptions that relate globally to value-based pay need to be added, he says. Before the Senate Finance Committee, Peter Mancino, deputy general counsel of e Johns Hopkins Health System in Baltimore, urged law- makers to reform Stark to allow for innovative payment models. e Affordable Care Act allowed HHS to issue broad Stark waivers, and HHS has taken advantage of that authority by issuing waivers from fraud and abuse laws for participants in the Medicare Shared Savings Program, the Bundled Payments for Care Improvement Initiative, the Comprehensive Care for Joint Replacement model and other ACO pro- grams. However, CMS doesn't have the legislative authority to go further, re- quiring Congress to act to remove any barriers to alternative payment models under Stark Law. e physician self-referral law prohibits any financial arrangement with a physician that does not fit within an established exception. "is in- flexibility is underscored as providers attempt to implement alternative payment models like ACOs, pay-for-performance, shared savings and bundled payments, which do not always fit into existing exceptions," stated a June report from Sen. Hatch. Sen. Hatch summarized comments made during a December round- table hosted by the Senate Finance Committee and the House Ways and Means Committee where subject-matter experts discussed issues related to Stark Law. Roundtable participants generally agreed that the physician self-refer- ral law does not have a place in the pay-for-value world, as it was created to address overutilization that occurs in a fee-for-service environment. Veteran healthcare advisor, Joe Lupica, chairman of Newpoint Health- care Advisors, agrees that Stark's usefulness is diminished as the indus- try transitions to value-based payment models. "Many of the abuses of Stark come from the fee-for-service system itself," he says. "e closer we move to value-based payment, value-based payment itself will start to wipe out foul-smelling incentives." Specific updates At the Senate Finance Committee hearing in July, Mr. Mancino from Johns Hopkins said linguistic ambiguities in the physician self-refer- ral law need to be eliminated and penalties under the law need to be more reasonable. Troy Barsky, a lawyer with Crowell & Moring, agreed. He urged lawmakers to change the proportionality of the penalty to the nature of the violation. is would allow provider organizations to avoid astronomical penalties for technical violations void of motive or intent. Mr. Barsky proposed imposing a fixed monetary penalty for such technical violations of Stark, rather than requiring a full refund of all Medicare payments related to prohibited referrals. Although modernizing Stark Law would involve new exceptions and clarifications, it could also entail removing at least one existing excep- tion: the in-office ancillary services exception. Physicians and medical practices rely on this exception, as it allows "within-practice" referrals for designated health services. Mr. Barsky said this exception is contrary to healthcare reform efforts and "con- tinues to incentivize in-office referrals and overutilization, making it less likely that these self-referring physicians will move to an integrated delivery model." Closing this loophole would incentivize physicians to move toward value-based models of care, he said. Time to examine the issue Discussing the complexity of the physician self-referral law in 2014, Mr. Stark told e Wall Street Journal that lawyers are the one group of people who are satisfied with how the law played out. "I have every lawyer in town bowing gratitude to me for the work they got out of that law," Mr. Stark said. From a standpoint of self-interest and for the sake of their professions, few practicing lawyers would rally behind a full repeal, but most would say an update would be good for the system, says Mr. Luke. at view is shared across the industry. Whether calling for a full repeal or just an amendment to bring the law up to date, now is the perfect time to examine whether healthcare law demands the same intensity of reform as healthcare payment and quality. n Could ACOs Inadvertently Be Making Healthcare Disparities Worse? By Emily Rappleye A ccountable care organizations — which are de- signed to help improve healthcare quality and contain costs — could be exacerbating disparities in healthcare, according to a study published by Health Affairs in August. This is because physicians who participate in ACOs are more likely to practice in affluent areas. Researchers found an inverse relationship between ACO participation and the percentage of the population a physician served that was black, living in poverty, uninsured or disabled, or had less than a high school education. This means patients who are already more vulnerable have less access to the benefits of ACOs. "These findings raise concerns that ACOs may increase existing disparities between the quality of healthcare re- ceived by vulnerable populations and the quality of care received by other groups," the authors wrote. The authors suggest this trend may be the result of sev- eral factors. First, they suggest ACOs may form in pop- ulations that are easier to treat or may exclude physi- cians who care for vulnerable populations to more easily achieve good quality scores. They also hypothesize that physicians serving the most vulnerable patient popula- tions may deem ACO participation too difficult because of the quality and spending goals, or the capital required to get an ACO contract off the ground. Healthcare policies may need to adjust to expand the quality improvements seen in early ACOs to vulnerable patient populations. However, "[T]he quality improve- ments documented for early ACOs — which were likely achieved among relatively affluent patient populations — may differ as ACOs expand to care for more diverse populations," the authors conclude. n