Health Care Partner Examines Changes to HHS Anti-Kickback Statute in Bloomberg Law and Becker’s Hospital Review

In The News
September 4, 2018
Thomas N. Bulleit

Becker’s Hospital Review reports on Aug. 30 that the U.S. Department of Health and Human Services’ Office of Inspector General recently published a request for information seeking input from the public on how the agency can foster care coordination by modifying or adding safe harbors to the Anti-Kickback Statute. The article highlights remarks from health care partner Tom Bulleit (Washington, D.C.) in an Aug. 24 interview with Bloomberg Law’s Health Law Reporter.

Mr. Bulleit explains that the request for information should be thought of differently than the proposed regulation pending at OMB that is entitled “Removal Of Safe Harbor Protection for Rebates to Plans or PBMs Involving Prescription Pharmaceuticals and Creation of New Safe Harbor Protection.” The former is widely-thought to be a Trump Administration effort to use the Medicare anti-kickback law as a sword to bring down drug prices by eliminating or severely restricting the current industry practice of rebating based on a percentage of sale price (though there is no clear connection between eliminating rebates and reducing list prices).

In contrast, the RFI is more of a shield to protect value-based healthcare arrangements from anti-kickback law concerns.  As he discusses, the RFI is aimed at finding ways to allow health care providers to collaborate and share risk and benefit if they can produce better health outcomes without facing kickback risk. He notes that a key issue is how to make the changes narrow enough to promote better health outcomes without facilitating payments for referrals.


Thomas N. Bulleit
Thomas N. Bulleit
Retired Partner