Crowell & Moring

Barsky

Yesterday, our colleague Troy A. Barsky testified before the U.S. Senate Finance Committee led by Chairman Orrin Hatch (R-Utah) and provided recommendations for modernizing the Stark Law to regulate self-referrals without impeding the care coordination and value-based payment models promoted by health care reform legislation. Other witnesses before the Committee included Dr. Ronald A. Paulus, president and chief executive officer of Mission Health; and Peter Mancino, deputy general counsel of The Johns Hopkins Health System Corporation.

During his oral testimony, Barsky raised the following points and recommendations to the Senate Finance Committee:

  • That the Stark Law is affecting the health care industry because it has moved beyond the bounds of its original intent;
  • Because of the changing nature of the health care system, the Stark Law should be reformed to facilitate new alternative payment models; and
  • What Congress can do to reform the law while still protecting patients and the Medicare program, such as removing the compensation-based prohibitions in the Stark Law and granting the Centers of Medicare & Medicaid Services more authority to issue broad waivers for a wider variety of innovative health care and payment systems to limit the piecemeal waiver approach developing under the Affordable Care Act.

In addition, Barsky urged that reform of the Stark Law should focus on “[m]aking bright line rules that providers can follow and expanding CMS’s authority to provide guidance through advisory opinions will greatly assist provider.” Other options for reform also included implementing a lower penalty scheme for technical violations of the Stark Law, and lowering CMS’s heightened standard of “no program or patient abuse” for promulgating new regulatory exceptions to the general prohibition” against self-referrals.

The Committee members in attendance, representing both the Republican and Democratic Parties, largely responded positively to comments shared by all of the witnesses during the hearing and Chairman Hatch said that the Committee would move reform proposals forward in the remainder of the year.

Barsky’s full written testimony can be found here. His comments are also featured in Bloomberg BNA, Inside Health Policy, Law360, and MedTech Insight (subscriptions required).