ACO snatching docs from rival

In this morning’s Boston Globe, Robert Weisman reports that the Beth Israel Deaconess Harvard Hospital lost 150 physicians in a defection to an upstart venture capital funded rival, Steward Health Care:

But a law firm hired by Beth Israel suggested that some incentives Steward offered Whittier violate federal and state “anti-kickback’’ statutes. Those laws prohibit paying for business that can be billed to government health insurers. A spokesman for Steward, a fast-growing, for-profit health care company, said its contract with Whittier is legal.

My money is on Steward on this legal issue:

  • The feds are showing growing fraud & abuse law flexibilities for ACO models, which is where Steward is heading
  • As we’ve said here before, consolidation is one of the effects of the ACO model
  • Notice no mention of Stark II, the more problematic statute in this area
  • Hardly anyone with interesting deals meets all of the anti-kickback statute safe harbors; that means nothing by itself
  • The underlying contract is the BCBS shared savings contract, the current darling of health care reimbursement wonks
  • If Steward wants additional assurance, they can ask for an OIG Opnion
  • Steward’s outside legal team on these issues is excellent (my former firm)

Prior TIE coverage:  Mass. doctors want to use ACO rules to violate antitrust laws; other ACO TIE posts here.

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