GNYHA Webinar Highlights Legal Risk Mitigation Strategies for Programs Addressing Social Care Needs

June 17, 2024

GNYHA hosted a briefing last week with attorneys from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC, to review the safe harbors and exceptions available under the Anti-Kickback Statute (AKS) and beneficiary inducement provisions of the Civil Monetary Penalties (CMP) law to support programs seeking to address patients’ social care needs (SCNs). While many GNYHA members have operated programs to address SCNs for years, New York State’s implementation of its new Section 1115 Medicaid waiver may present opportunities for hospitals to collaborate with community-based organizations and others on SCN programs. GNYHA recognized the timeliness of revisiting certain flexibilities under the AKS and CMP law.

Those laws are intended to combat fraud and abuse in health care by prohibiting certain arrangements that could be seen as improperly increasing utilization of services payable by Medicare or Medicaid.

Laurence J. Freedman, Member at Mintz, noted the tension between the fraud and abuse statutes and programs intended to address SCNs. He said there is a “continuing need to be mindful of the risks in this area. These are not traditional Medicaid programs and services; they require some coordination.” The Mintz team, however, also highlighted the AKS safe harbors and CMP law exceptions that the government has created to mitigate such risks in recognition of the role that SCNs play in health at both the individual and population level.

Rachel E. Yount, Of Counsel at MIntz, detailed several of the applicable safe harbors and exceptions, saying “supporting safe harbors allows you to give certain things to patients to improve quality, health outcomes, and efficiency furnished by a value-based enterprise.” Her presentation outlined the requirements of the various safe harbors and exceptions. Jeannie Mancheno, Associate at Mintz, discussed certain Office of Inspector General advisory opinions that provide further guidance.

The Mintz team also went through several hypotheticals, analyzing whether they implicated the fraud and abuse laws and how the facts could be structured to fit into a safe harbor or exception. The scenarios included providing free childcare during nutrition counseling appointments and installing grab bars.

The slides and recording for this briefing are available to GNYHA members on our website.