Below is a brief look at what the AKS is, penalties under the AKS, why the new tax credit causes the AKS to be implicated in a wider range of items and services than it has been historically, and finally, the potential real-world impact of the change. If you’re familiar with the AKS already, feel free to skip to the “expansion” section below.
Executive Summary
January 1, 2014 is the
effective date of a new refundable tax credit in the Internal Revenue
Code (26 U.S.C. § 36B) that
provides for direct payments from the federal government to private health
insurance companies to cover at least some of the health insurance premiums for certain
taxpayers with incomes under 400% of the federal poverty level. The
Congressional Budget Office estimates (PDF) that this will describe about 8 million people in 2014, increasing to
approximately 20 million people in 2022.* As explained below, under
the explicit terms of the AKS, this almost certainly makes the items and services furnished under those health
insurance plans subject to the AKS.
Because of how the tax credit is calculated and how AKS is enforced (discussed below), this also likely means that people and organizations in the health care industry—including landlords for health care providers—should treat the AKS as applicable to all items and services, regardless of whether they are reimbursable by Medicare, Medicaid, subsidized private insurance, or unsubsidized private insurance. Health care providers and their suppliers who deal exclusively with private-pay patients and do not accept any insurance whatsoever are less likely affected for patients under their direct care, but will still need to be careful about referral arrangements.
Because of how the tax credit is calculated and how AKS is enforced (discussed below), this also likely means that people and organizations in the health care industry—including landlords for health care providers—should treat the AKS as applicable to all items and services, regardless of whether they are reimbursable by Medicare, Medicaid, subsidized private insurance, or unsubsidized private insurance. Health care providers and their suppliers who deal exclusively with private-pay patients and do not accept any insurance whatsoever are less likely affected for patients under their direct care, but will still need to be careful about referral arrangements.
What is the AKS?
The AKS, very
generally, is a federal law that penalizes “whoever” offers,
pays, solicits, or receives “any remuneration” in exchange for
patient referrals or the furnishing, receiving, or recommendation of
items or services even partially covered by a “Federal health care program”
(FHCP) to which the government even partially makes direct payments. 42
U.S.C. § 1320a-7b(b)(1), (2).
And
yes, “whoever”, really means “whoever”: from doctors, to
nurses, radiology clinics, laboratories, pharmacists, pharmaceutical
sales representatives, delivery
drivers, custodial staff, landlords for health care items and service providers, and
even patients; likewise, “any
remuneration” really means “any”: from season tickets to
baseball games, to envelopes full of cash, a landlord charging higher rent to a doctor (as compared to an accountant) for an office across the street from a hospital, a physical therapist waiving copayments for patients, or even a pharmacy giving out coupons
for $0.50 off of a movie ticket.
In the more than
40 years of the existence of the AKS and its predecessors, there has never been a minimum threshold for an FHCP’s partial coverage of an item or service, the government’s partial payment to
an FHCP, or the amount of “remuneration” at issue:
a fraction of a penny for any of those purposes is theoretically
enough to implicate the AKS. See
https://oig.hhs.gov/fraud/docs/safeharborregulations/072991.htm
(search
for de minimis).
AKS
(and other)
penalties
The penalties for
violating the AKS are stiff: a felony conviction plus up to a $25,000
fine, five years in prison, possible exclusion from being
reimbursed for providing items or services to anyone enrolled in an
FHCP, plus assessment of additional “civil monetary penalties”
(CMPs). CMPs are also applicable in certain broader situations and will be the subject of another post.
On top of that, the AKS
explicitly provides that any claims filed that result from an
arrangement that violates the AKS are now automatically deemed “false
claims”, which brings additional penalties under the False Claims
Act (FCA). See 42 U.S.C. § 1320a-7b(g). There are some additional FCA-related issues that will
be discussed in a future post.
Finally, the
AKS explicitly does not require any specific intent to violate
it—meaning that you only need to be aware that you're doing something, but you do not need to know that that “something” is prohibited by the AKS. The AKS also explicitly provides that
you don’t need to know that the AKS even exists to be guilty of
violating it. So if you are involved in any way with delivering or
receiving health care items or services, now, more than ever, you
ignore the AKS at your peril. See 42
U.S.C. § 1320a-7b(h).
AKS expansion
beyond its historical reach
The AKS directly
applies only to items and services services furnished under FHCPs,
which are commonly—yet not entirely accurately—understood to mean
programs such as Medicare, Medicaid (and similar programs), TriCare, and the VA.
So, what is an FHCP? An
FHCP is defined by statute as:
any plan or program that provides health benefits, whether
directly, through insurance, or otherwise, which is funded
directly, in whole or in part, by the United States
Government (other
than the health
insurance program under chapter 89 of title 5 [of the United
States Code])...
42
U.S.C. 1320a-7b(f)(1) (emphasis added). An FHCP
also specifically includes Medicaid and Title
V and XX
programs. See 42 U.S.C. § 1320a-7b(f)(2); 42
C.F.R. § 1001.2.
The “health insurance program under chapter 89 of title 5”, is otherwise known as the “Federal Employees Health Benefits Program”, or FEHBP. The FEHBP is the private health insurance program for federal civilian employees, under which the federal government makes direct payments to health insurance companies to cover part of the premiums for eligible beneficiaries. The applicable statute and regulations specifically exempt only the FEHBP from the definition of FHCP, implying that the FEHBP would otherwise be included in the AKS’s definition of an FHCP.
The “health insurance program under chapter 89 of title 5”, is otherwise known as the “Federal Employees Health Benefits Program”, or FEHBP. The FEHBP is the private health insurance program for federal civilian employees, under which the federal government makes direct payments to health insurance companies to cover part of the premiums for eligible beneficiaries. The applicable statute and regulations specifically exempt only the FEHBP from the definition of FHCP, implying that the FEHBP would otherwise be included in the AKS’s definition of an FHCP.
Starting January 1,
2014, 26
U.S.C. § 36B (enacted by Pub.
L. 111-148 § 1401) provides a refundable tax credit for
individuals whose health insurance costs exceed certain thresholds as a proportion of income. It is not clear whether this
credit alone would cause these individuals’ insurance to become an
FHCP (my view: likely yes, because the credit is issued specifically
to subsidize health insurance premiums, but this will be fully
explored in yet another future post), but coupled with how this credit is paid
on behalf of taxpayers (below), and without a specific statutory
exception, in my view it almost certainly makes certain private health insurance
qualify as an FHCP under the AKS.
42
U.S.C. § 18082(c)(2)(A) (enacted by Pub. L.
111-148 § 1411) provides that the Secretary of the Treasury shall
make “advance payment” in the amount of the applicable credit “to
the issuer of a qualified health plan” on a monthly basis to cover
partial health insurance premiums on behalf of eligible taxpayers.
See also 26 C.F.R. § 1.36B-2 (affirming the Secretary’s
decision to make monthly advance premium payments).
Because the government
makes direct payments to private health insurers, anyone who has government-subsidized insurance through those insurers is enrolled in a “program that provides health benefits ... through
insurance ... which is funded directly, in whole or in part, by the
United States Government” and which is not described in Title
5, Chapter 89 of the US Code. Assuming that
“payment . . . to the issuer of a qualified health plan” from the Treasury is
equivalent to “funded directly” by the Government—and without serious contortions
of the English language, that seems to be a fair assumption,
particularly given the specific exclusion of only the FEHBP from the
definition of FHCP, but no specific exclusion for advance premium
payments from the definition of FHCP—the AKS applies.
Still, how can one be
sure of whether a health insurance plan or benefit qualifies as an
FHCP? A
question was recently raised on an American
Health Lawyers Association email list that I moderate about
whether the federal government maintains a public list of FHCPs to which the
AKS
applies.
One
benefit
of such list would be that
if the government maintained such a list, people could definitively
know whether or not they are subject to the AKS.
The answer appears to be that there is no such official list, and the government presumably has little incentive to maintain such a list. Why? Two reasons: 1) The AKS is intentionally broad, so publishing a list might implicitly narrow its possible scope of enforcement in a manner not authorized or intended by Congress; and 2) The definition of FHCP is so broad that it is really only feasible to explain what an FHCP is not, as shown by this flow chart (start in the bottom left):
The answer appears to be that there is no such official list, and the government presumably has little incentive to maintain such a list. Why? Two reasons: 1) The AKS is intentionally broad, so publishing a list might implicitly narrow its possible scope of enforcement in a manner not authorized or intended by Congress; and 2) The definition of FHCP is so broad that it is really only feasible to explain what an FHCP is not, as shown by this flow chart (start in the bottom left):
This makes the advance premium payment issue essentially a
two-step inquiry (putting aside the tax credit offered to taxpayers
without advance premium payments, and assuming that we are not discussing the FEHBP): 1) Is that insurance “any . . . insurance . . . other than” the FEHBP? Yes. 2) Through advance premium payments to health insurers, does the government directly
pay for any portion of health insurance or health care? Yes. Therefore it is an FHCP and the AKS is directly
implicated.
For those who may be
interested in seeing a non-exclusive list of other programs that likely
qualify as FHCPs (with one exception), it is available here: 42
U.S.C. § 14402(d) (prohibiting federal funding for assisted
suicide). However, that list is not specifically incorporated into
the AKS, so it is best to not rely on the list for anything other than its stated purpose.
Interesting,
but what does this mean in the real world?
One problem for anyone
involved in patient care is that the Treasury’s advance
premium payments can fluctuate on a monthly basis with respect to any person depending on their income; that is, the Treasury could make payments in some months, but not others. Because under the AKS’s
definition of FHCP, the advance premium payment makes the applicable
insurance program an FHCP, it is not possible to tell who is or will
be enrolled in an FHCP at any given time. Therefore, because of the
high stakes involved in violating the AKS, it may be appropriate to treat all privately-insured patients as if the advance premium payment is being made on their behalf, and thus, as if they are enrolled
in an FHCP. This would mean that any items or services furnished to them or their health care providers or suppliers would be treated as subject to the
AKS.
What does this really
mean, in practice, though? Honestly, probably not much for health
care items and services providers who already serve or treat a mix of
Medicare, Medicaid, etc., and privately-insured patients: they
probably already are (or at least, should be) treading lightly around
AKS issues because of the AKS’s longstanding indirect applicability to private insurance benefits.
The AKS currently indirectly applies to private insurance benefits in certain circumstances because the
Office of Inspector General (OIG) of the Department of Health and
Human Services (HHS), the entity responsible for enforcing the AKS,
has consistently explained for many years that any remuneration
arrangement
related only to private insurance benefits that could possibly influence
FHCP referrals
or other business would likely implicate the AKS as
well.
See https://oig.hhs.gov/fraud/docs/advisoryopinions/2000/ao00_8.pdf;
https://oig.hhs.gov/fraud/docs/advisoryopinions/2012/AdvOpn12-06.pdf. Specifically, the OIG has relatively consistently declined
to extend “safe harbor” protection to remuneration arrangements that apply to privately-reimbursable items and services but “carve
out” FHCP-covered items and services, meaning that OIG is essentially
reserving the right to pursue penalties at any time for remuneration arrangements subject to “carve outs”.
If this stance is any guide, then although the AKS will directly apply only to items and services reimbursable by subsidized private insurance, by extension, it should indirectly apply also to items and services reimbursable by unsubsidized private insurance, because of the potential influence on subsidized referrals.
Therefore, for people or organizations who do not typically deal with currently-recognized FHCPs, e.g., physicians in independent practices that don’t participate in Medicare, Medicaid, or similar programs, the advance premium payment system should be cause to seriously and thoroughly evaluate all of their business and referral relationships.
If this stance is any guide, then although the AKS will directly apply only to items and services reimbursable by subsidized private insurance, by extension, it should indirectly apply also to items and services reimbursable by unsubsidized private insurance, because of the potential influence on subsidized referrals.
Therefore, for people or organizations who do not typically deal with currently-recognized FHCPs, e.g., physicians in independent practices that don’t participate in Medicare, Medicaid, or similar programs, the advance premium payment system should be cause to seriously and thoroughly evaluate all of their business and referral relationships.
Remaining questions
There are many remaining questions about potential exceptions, the full scope of the changes, and effects in conjunction with related laws. Stay tuned...
* See Table 3. These figures are the sum of the “Exchanges” population less “Number of Unsubsidized Exchange Enrollees”.
© 2013 Alex M. Hendler. All Rights Reserved. This post is not legal advice. Please consult an attorney to discuss you particular facts or circumstances.
