By Greg Freeman
Recent changes to the federal Anti-Kickback Statute (AKS) and Stark Law provide protection to hospitals and health systems seeking to offer mental health, behavioral health improvement, or maintenance programs to physicians and other clinicians.
Previously, healthcare organizations could be subject to risks under the AKS and Stark Law because providing such benefits may not fit within an exception or safe harbor and could constitute improper remuneration, says Robert Anthony Wells, JD, shareholder with Baker Donelson in Baltimore.
Programs Are Protected
The rule changes in the 2023 Consolidated Appropriations Act protect counseling, mental health services, suicide prevention programs, or substance use disorder prevention and treatment programs for healthcare providers to improve mental health and resiliency or provide training in appropriate techniques.1
“Good news for hospitals and good news for clinicians, given the data that we continue to see about the adverse mental health of physicians. I think that it is a useful tool for hospitals to attempt to maintain their personnel and staffing,” Wells says. “It’s a valuable benefit to address a problem that we’re having with clinician shortages, but also just a good step in the right direction for overall mental health and wellness of our healthcare community.” The programs must be designed appropriately and fit certain clinical parameters, such as measuring participation and effectiveness, he says.
Wells notes clinicians may be reluctant to seek mental health services because they are concerned it could be used against them by employers or other providers, or even in licensure action. That means just offering a program without compliance risk does not guarantee participation.
“If you’re going to design a program or you’re going to implement it for physicians, I think that we need to see attitude changes around mental health to promote the actual participation and utilization of these programs,” Wells notes. “You can design a program that fits within the protection, but I think to encourage people to use them we have to normalize the need for this type of care and taking advantage of these types of services. I think that’s something institutions can certainly encourage and promote as they are designing these types of programs.”
REFERENCE
1. Klele KJ, O’Neill RL, Meiselas WR, et al. New changes to Federal Self-Referral and Anti-Kickback Laws. Lexology. May 3, 2023.
SOURCE
• Robert Anthony Wells, JD, Shareholder, Baker Donelson, Baltimore. Email: [email protected].
Recent changes to the federal Anti-Kickback Statute and Stark Law provide protection to hospitals and health systems seeking to offer mental health, behavioral health improvement, or maintenance programs to physicians and other clinicians.
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