HHS OIG Notice Seeks Comments on Safe Harbors, Special Fraud Alerts

Once a year, as required by the Health Insurance Portability and Accountability Act of 1996, the Department of Health and Human Services Office of the Inspector General (“OIG”) solicits proposals to develop new or revised anti-kickback, fraud and abuse safe harbors. The OIG published its request for proposals for new or revised safe harbors in the December 29, 2011 Federal Register. The notice also seeks comments on developing special fraud alerts.

Comments are due February 27, 2012.

The OIG acknowledged in the notice that the anti-kickback, fraud and abuse statute is so broad that some relatively innocuous commercial arrangements may be subject to criminal prosecution or administrative sanction. The purpose of the safe harbors is to limit regulatory restraints and permit certain beneficial arrangements while also protecting the integrity of federal health care programs. Unfortunately, many safe harbors, for example, the one third rules with respect to ambulatory surgery centers, are very complicated and full compliance is difficult to achieve.

The purpose of special fraud alerts is to help providers identify situations which are considered by the OIG to violate the anti-kickback statute.

FMC Technologies general counsel, Jeff Carr, is quoted as writing “ I yearn for … simplification.” Apple’s Steve Jobs is reported to have rejected a 100 page contract from IBM demanding that the IBM come back with a two-to-three page contract instead.

My recommendations to the OIG for new or revised safe harbors, simplification. Complex safe harbors and complex regulations do not equate to cost effective, quality health care and don’t reduce fraud. Simplicity is simply better.