For unquantifiable results, the Hospital would pay to the employee an amount based on the estimated savings. This program does not violate the prohibition on gainsharing because no payments would be made to physicians and the arrangement would not reward suggestions that would reduce or limit services or impair the quality of care for patients. The arrangement also passed the prohibitions under the Anti-Kickback Statute because the hospital would not reward physicians, would not reward employees whose suggestions specified a particular vendor, and would not reward or implement suggestions that shift costs to federal health care programs. The OIG authorized the arrangement even though some employees would be in a position to make referrals for, or arrange for the referral or provision of, items or services reimbursable by federal health care programs. The costs of the Program would be funded by charitable donations.
Benefits are primarily intangible.
The Program provides a substantial benefit to patients. There are substantial barriers to patients' choice of hospice care. The OIG found that although the Program could potentially generate prohibited remuneration, sanctions would not be imposed because the requisite intent to induce referrals was not present. Though the three states' laws differ, all have the effect of prohibiting insurers from requiring physicians to agree to the all-products clause as a condition for participation. The OIG warned providers not to overly rely on the software because such software may pick the wrong code, therefore causing fraudulent billing.