The Department of Health and Human Services Office of Inspector General (“OIG”) has asked for recommendations to help develop new or revised safe harbors from the federal Anti-Kickback Act, according to a notice published on December 27, 2013. The OIG also asked for comments on developing new Special Fraud Alerts, which offer guidance to healthcare providers about practices that OIG views as potentially fraudulent or abusive.

Safe harbors protect certain beneficial arrangements that could otherwise trigger the Anti-Kickback Act, which provides for criminal penalties if individuals knowingly and willfully offer, pay, solicit, or receive remuneration to induce or reward business reimbursable under federal healthcare programs. According to the notice, some beneficial services that may qualify for protection may include those that affect:

  • patient access to healthcare services;
  • the quality of healthcare services;
  • patients freedom of choice among providers;
  • competition among providers and costs to federal healthcare programs;
  • potential overutilization of healthcare services, and
  • the ability to provide services in medically underserved areas or to medically underserved populations.

The OIG’s notice, published in the Dec. 27, 2013 Federal Register (78 Fed. Reg. 78,807), is available here. Comments are due by February 25, 2014 and should refer to file code OIG-122-N. The OIG last solicited comments for developing new safe harbors and Special Fraud Alerts through the Dec. 28, 2012 Federal Register (77 Fed. Reg. 76,434). A status report of the public comments received was included in Appendix F of the OIG’s Semiannual Report to Congress, available here.

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