Guidelines from OIG help make gainsharing safe

Barron Bogatto, JD, a partner in the health care and business transactions sections of Jackson Walker, a law firm in Houston, provides this summary of the gainsharing guidelines offered by the Office of the Inspector General (OIG). In order to pass muster with the OIG, a gainsharing agreement must meet these tests:

1. The specific cost-saving actions and resulting savings were clearly and separately identified. The transparency of the proposed arrangement would allow for public scrutiny and individual physician accountability for any adverse effects.

2. The parties provided credible medical support for the position that the implementation of the recommendations would not adversely affect patient care. Also, the implementations would be reviewed periodically to ensure they are not having adverse affects on clinical care.

3. The payments under the proposed arrangements were based on all procedures, regardless of the patient's insurance coverage, subject to a cap on payment for federal health care program procedures. Moreover, the procedures to which the proposed arrangements applied were not disproportionately performed on federal health care program beneficiaries. Also, the cost savings would be calculated on the hospital's actual out-of-pocket acquisition costs, and not an accounting convention.

4. The arrangements used objective historical and clinical measures to establish baseline thresholds beyond which no savings accrue to the physician group.

5. The product standardization portion of the proposed arrangement further protected against inappropriate reductions in services by ensuring the individual physicians still would have available the same selection of devices after implementation of proposed arrangement as before such implementation. The proposed arrangement was designed to produce savings through inherent clinical and fiscal value and not from restricting the availability of devices.

6. The hospital and the physician group would provide written disclosures of their participation in the proposed arrangement to the patients whose care may be affected by such arrangement. The patient also would be provided an opportunity to review the cost savings recommendations prior to admission hospital (or, where pre-admission consent is impracticable, prior to consenting to the procedure).

7. The financial incentives under the proposed arrangement were reasonably limited in duration and amount.

8. The profits were distributed to physician group members on a per-capita basis, thereby mitigating any incentive for an individual surgeon to generate disproportionate cost savings.