As doctors and hospitals edge toward new collaborative systems of managed care, a top federal auditor this week offered some advice to policymakers governing the transition: Don't restrict those providers with heavy-handed statutes or regulations.
Instead, suggested Lewis Morris, chief counsel for the Office of Inspector General (OIG) of the Department of Health and Human Services (HHS), the administration should lend providers a short-term exemption to antitrust laws and other legal constraints — a waiver power granted to the HHS by the Democrats' new health reform law.
That legislation includes funding for pilot programs called accountable care organizations (ACOs), which are essentially collaborations between doctors, hospitals and other providers designed to eliminate unnecessary treatments and (eventually) slow the skyrocketing cost of healthcare.
But providers have been leery. Not only would ACO arrangements steal some of the sovereignty of independent-minded doctors, but coordinating with former competitors has also raised fears about violating self-referral and anti-kickback laws, among others.
All sides of the debate agree that, for the pilots to be successful, those restrictions will have to be rolled back to create safe havens for providers to maintain these new, yet-to-be-defined ACOs. How it's done, though, remains unclear.
Morris told reporters Tuesday that congressional action would delay the process too long. "It takes a long time to pass a law," he said.
And an HHS regulation, he warned, would necessarily steal a great deal of flexibility from providers hoping to experiment with the ACO model. Such a regulation, Morris said, would have to be written very specifically, because "it's an exception to a criminal statute."
Instead, Morris suggested HHS use its exemption authority to "lift" the legal constraints on a short-term basis for the pilot ACOs and reinstall them later.
Meanwhile, the Federal Trade Commission announced this week that it will host a workshop later this year to help providers create ACOs without running afoul of antitrust laws.