HHS
stated that it does not consider QHPs, other programs related to the
Federally-facilitated Marketplace, and other programs under Title I of the
Affordable Care Act to be federal health care programs within the §1128B
definition. HHS confirmed that this
includes State-based and Federally-Facilitated Marketplaces (“Marketplace”);
cost-sharing reductions and advance payments of premium tax credits; Navigators
and other federally funded consumer assistance programs; consumer-oriented and
operated health insurance plans; and the risk adjustment, reinsurance, and risk
corridors programs.
Because
QHPs are not considered Federal Health Care Programs under §1128B, they are not
subject to the Anti-Kickback Statute (“AKS”). The AKS makes it a criminal
offense to knowingly and willfully solicit, receive, offer, or pay, any
remuneration to reward or induce referrals of items or services reimbursable by
a federal health care program.[1] The effect of this guidance seemed to be
that hospitals and health providers may be able to subsidize premiums for
patients that purchased QHP coverage on the Marketplace. However, on November 4, 2013, HHS published a
Q&A
(“Q&A”) that cautions against any third party paying the premiums for QHPs
purchased through the Marketplace. HHS
states that it has “significant concerns with this practice because it could
skew the insurance risk pool and create an unlevel field in the
Marketplaces.” HHS continues on in the
Q&A to state that it discourages such practice and encourages issuers to
reject third party payments. In addition, HHS will be monitoring any third
party payments and plans to take necessary action to discourage such
payments. Therefore, as a result of
Q&A, hospitals and health care providers will be closely monitored to
ensure they are not subsidizing premiums for QHPs purchased through the
Marketplace.
For
questions please contact Kristen Gentry at kgentry@kdlegal.com
or Meghan Linvill McNab at mmcnab@kdlegal.com.
[1] Social Security Act
§1128B(b)(1) and (2).