Capitol Correspondence - 06.03.19

Attempts to Implement Social Determinants of Health Run Into Regulatory Hurdles

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ANCOR is sharing this article by Politico Pro because social determinants of health are increasingly influencing the delivery of health care and social supports, including programs used by people with intellectual / developmental disabilities (I/DD). This article could be useful for our members as they monitor trends in disability supports.

As shared by Politico Pro:

“The definition of keeping a patient well keeps evolving, with doctors and hospitals increasingly focused on wealth, employment and conditions at home. But efforts to address these societal factors are bumping up against laws aimed at preventing providers from offering things of value to generate business.

Giving patients healthy meals, free rides to the grocery store or devices to monitor their medical conditions could be illegal inducements under decades-old fraud and abuse laws.

The Trump administration may soon unveil an overhaul of those broad rules as providers push for changes they say could narrow health disparities. But it’s still unclear if the administration will give the providers all the legal safe harbors they’re seeking and risk losing an important enforcement hammer.

Providers say one particular concern is the federal anti-kickback statute, which blocks offering anything of value to drum up business in a federal health program, and rules around beneficiary inducements that cap gifts at $75 a year and $15 per item.

‘Many times, in order to improve health, it’s going to be, ‘Can someone make it to their appointments? Do they have food? Do they have the right living conditions?” said Rod Hochman, president and CEO of Providence St. Joseph Health, adding that the current legal framework ‘stands in the way of good care.’

CMS can grant waivers from these laws in projects it sponsors that experiment with coordinated care. The Affordable Care Act added incentives to promote value-based care arrangements. But health systems say they need more sweeping legal certainty to avoid potentially crushing fines — and to take stronger steps to cut down on readmissions — while moving away from a system that rewards the volume of services provided over health outcomes.


Last year, the Trump administration launched an effort to revamp those rules. HHS’s requests for information generated hundreds of comments from industry players with a broad consensus that the current regulations are antiquated — a byproduct of an era when health services were bought à la carte and self-dealing was more prevalent.


Proposed changes could come as soon as this summer. And the administration could potentially give providers at least some of the flexibilities they want.

HHS’s ‘Regulatory Sprint to Coordinated Care’ is aimed, in part, at ‘considering reforms’ that could allow providers to better offer services targeting social determinants of health, a department spokesperson wrote in an email. Addressing the social, economic and environmental factors influencing a person’s health is “a focus of HHS,” the spokesperson said.


HHS’s inspector general has the authority to create new safe harbors, but whether they should be used for social determinants of health is not an easy question to answer.


The administration and Congress have already taken more limited steps to support non-medical services. Starting in January, Medicare Advantage plans will be allowed to cover rides to the grocery store, subsidize rents and install mobility aids like wheelchair ramps, for beneficiaries with chronic diseases.


A five-year CMS Innovation Center project links certain Medicare and Medicaid beneficiaries to community services for help with housing, food and utilities. Many state Medicaid managed care plans encourage similar screening and referrals, and some private health plans are also starting work in this space.

But the fraud and abuse rules can still serve as a barrier to experimentation.”