Document Type

Article

Publication Date

Winter 2017

Abstract

The enactment of the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) was well-received by all as it repealed Medicare’s Sustainable Growth Rate and, in its place, mandates the implementation of a new system for health care delivery and payment. Under MACRA, health care providers are expected to work together and coordinate their efforts with the goal of improving patient outcomes and controlling costs. For the first time ever, federal reimbursements will be tied to quality of care and improved cost efficiencies. However, as a new law, MACRA’s potential for success needs to be measured in terms of its “fit” within the existing legal framework. Specifically, MACRA’s fee-for-value approach needs to be assessed against the Ethics in Patient Referrals Act (Stark). As a strict liability law that encourages health care providers to continue working in silos, Stark has had a chilling effect on the health care industry as multi-million dollar penalties have been assessed for a single prohibited referral made by a physician for certain federally reimbursable health care services. Ironically, the type of conduct Stark prohibits is the very conduct that MACRA needs health care providers to engage in to achieve its goals. This misalignment between the two laws poses a significant impediment to MACRA’s successful implementation.

This Article discusses the inherent misalignment between MACRA and Stark, provides an overview of the original intent behind both laws, and shows which provision of Stark is in direct contravention of MACRA. Specifically, it advocates that the provision of Stark that regulates physician compensation is an impediment to health care reform and unnecessary in light of the modern-day, more robust Anti-Kickback Statute. This Article addresses a cutting-edge issue in health care law and contributes to the ongoing debate on how to best reconcile MACRA and Stark to achieve the goals of health care reform.

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