The parameters for a gainsharing waiver are clearly defined. OIG reasoned that the potential for fraud could be reduced if safeguards were put in place, and it agreed not to prosecute organizations that apply three criteria: (1) measures that promote accountability and transparency, (2) adequate quality controls, and (3) controls on payment related to referrals, explains healthcare attorney Cynthia Marcotte Stamer.
The Centers for Medicare & Medicaid Services is also interested in how gainsharing can bend the cost curve, which is why it extended a demonstration authorization on a gainsharing program for Medicare fee-for-service populations for two years (that extension ended in 2011 and data on the program is due in 2013). In 2010, the Journal of Hospital Medicine reported that one of the gainsharing demonstration pioneers, Beth Israel Medical Center in New York City, was seeing quality improvements and saving $1,835 per admission.
Healthcare CFOs shouldn't assume that shared savings programs have any less potential for similar legal challenges, says Marcotte Stamer. The only legal difference between these two arrangements is that when PPACA was enacted, the government addressed shared savings preemptively as part of the Medicare Shared Savings Program.