Over the past several years the Congress and Medicare regulators have discussed reforming the 1989 Ethics in Patient Referral Act. Otherwise known as the physician self-referral or more commonly termed Stark law (named after the former California House member, Pete Stark, the initial sponsor of the bill). Stark law is today widely viewed as an impediment to care coordination or payment models that financially incent providers to improve care, care coordination and reduce spending growth, or moreover Accountable Care Organizations (ACOs) and bundled payment arrangements, because as implied the law prohibits physicians from referring patients to receive "designated health services" payable by Medicare or Medicaid from entities with which the physician or immediate family member has a financial relationship. Beyond the complexity of the law, its strict liability provision, potential substantial fines imposed under the law, exposure to False Claims liability and Medicare exclusion, there has been increasing sentiment the law generally does not have a place in today's pay for performance or pay for value world. Most recently, this past June 25th DHHS published a Request for Information (RFI) soliciting stakeholders to offer comments on improving Stark law and most recently, or on July 17th, the House Ways and Means heard related testimony.
During this 27 minute conversation Ms. Hooper Kearbey discusses her work related to Stark law, the numerous current problems with the law and areas where the law can be improved. She notes the current DHHS Stark RFI, e.g., to what extent improved transparency about a physician's financial relationships could help improve the law and and makes comment on the use of gainsharing in current pay for performance arrangements.
Ms. Amy Hooper Kearbey is a attorney and partner with the DC-based law firm, McDermott Will & Emery. Her practice focuses on providing Medicare regulatory coverage, coding, reimbursement and compliance as well as advice regarding federal fraud and abuse regulations and clinical research compliance. She is a member of the District of Columbia Bar Association, the American Health Lawyers Association and the National Blood Clot Alliance. She earned her law degree from the Duke University School of Law and her AB from Dartmouth.
The Stark RFI is at: https://www.gpo.gov/fdsys/pkg/FR-2018-06-25/pdf/2018-13529.pdf and related July 17 testimony by four witnesses before the House Ways and Means Committee is at: https://waysandmeans.house.gov/event/hearing-on-modernizing-stark-law-to-ensure-the-successful-transition-from-volume-to-value-in-the-medicare-program/.
Reforming the Physician Self-Referral Law (Stark Law): A Conversation with Amy Hooper Kearbey (July 31st)