Because plans offered on the new health insurance exchanges are not federal healthcare programs, the Anti-Kickback Statute and other federal enforcement statutes do not apply, according to a legal advisory issued by the American Hospital Association.
In an Oct. 30 letter to Rep. Jim McDermott (D-Wash.), HHS Secretary Kathleen Sebelius confirmed plans purchased on the exchanges established by the Patient Protection and Affordable Care Act are not federal healthcare programs and therefore are not applicable to the Anti-Kickback Statute. Additionally, the PPACA allows a third party to pay the premium on an exchange plan.
This should mean hospitals and health systems can supplement the insurance premiums for patients as they see fit. However, in a Nov. 4 Q&A, HHS expressed concerns these payments could create an unlevel playing field in the market and declared the department "discourages this practice and encourages issuers to reject such third party payments." Additionally, HHS "intends to monitor this practice and to take appropriate action, if necessary."
However, according to the AHA brief, HHS cannot currently take legal action against payments of this nature without rulemaking, as it has already declared PPACA plans to be separate from federal healthcare programs and not subject to the AKS or similar laws. The brief states: "While it undoubtedly was intended to have a chilling effect on the willingness of hospitals to provide insurance subsidies for individuals in need, the Q&A appears to have no legal force or effect on hospitals (or insurers) and to be unenforceable." Even if HHS decided to pursue rulemaking, AHA doubts HHS has the authority to enforce a ban on healthcare providers helping their patients afford PPACA premiums.
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