OIG Invites Proposals for Anti-Kickback Safe Harbors and Recommendations for Fraud Alerts

The Department of Health and Human Services (HHS) Office of Inspector General (OIG) has published its annual solicitation of recommendations for new or revised Anti-Kickback Statute Safe Harbors and new Special Fraud Alerts. The OIG is seeking these requests because it describes the Anti-Kickback Statute as “so broad” that “relatively innocuous commercial arrangements” could violate the law. The OIG has the discretion to designate that certain “payment and business practices” are not treated as criminal offenses under the Anti-Kickback Statute or the basis for administrative sanctions. The proposal also solicits recommendations for practices that should be discussed in Special Fraud Alerts. These Special Fraud Alerts help providers remain compliant with the law by offering guidance about practices that may be considered fraudulent. The Federal Register announcement lists the deadline for suggestions and recommendations as February 27, 2018. The same deadline applies to suggestions for practices that could be discussed in Special Fraud Alerts.

By asking the provider community and the public for feedback and suggestions, the OIG hopes to continue its clarification of those practices that should not implicate the Anti-Kickback Statute. When evaluating whether to create a Safe Harbor, the OIG will consider how the proposal affects the following:

• Access to health care services;
• Quality of health care services;
• Patient choice among health care providers;
• Provider competition;
• Cost to federal health care programs;
• Potential overutilization of services; and
• Ability of health care facilities to provide services in medically underserved areas or to medically underserved populations.

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