The Pennsylvania Department of Human Services recently published a final rule amending the Pennsylvania Human Services Code (the Code) by removing obstacles that made it more difficult for providers to share costs. The final rule, 53 Pa.B. 376, is expected to make it easier for providers to pursue an integrated approach to healthcare delivery.
Pennsylvania’s anti-kickback statute states it is unlawful to solicit or receive – or to offer or pay – any remuneration, including any kickback, bribe or rebate, directly or indirectly, in cash or in kind, from or to any person in connection with the furnishing of services or merchandise for which payment may be in whole or in part under the Medical Assistance Program or in connection with referring an individual to a person for the furnishing or arranging for the furnishing of any services or merchandise for which payment may be made in whole or in part under the Medical Assistance Program.
The Code previously specifically prohibited Medical Assistance Program participants from leasing or renting space within their office to another provider, or allowing the placement of staff from another provider in the provider’s office. However, this proved to be difficult for co-located providers that wanted to participate in the Medical Assistance Program.
Previous Amendments
In 2016, Pennsylvania amended the anti-kickback statute to allow for “a more integrated approach to receiving diagnosis and treatment of illness or injury,” including situations where a pharmacy and clinic are located within the same building or a multidisciplinary co-location arrangement, where separate providers share the same office space. At that time, the Centers for Medicare and Medicaid Services (CMS) found that multidisciplinary co-location arrangements “demonstrated effectiveness to reduce emergency room visits and increase consumer access to certain services.”
The 2016 changes included an attestation form that providers could sign to attest to their compliance with state and federal anti-kickback laws, even if they were co-located with other providers. Co-located providers also had to advise patients of their freedom of choice in selecting health care providers and needed to display a sign advising patients of that freedom.
Nine co-located providers operating at 82 different locations took advantage of the 2016 change, asking for (and ultimately receiving) a waiver of the regulation. The providers then had to sign the attestation form and include the sign advising patients of their freedom of choice in selecting health care providers.
Current Amendment
The 2023 amendment clarifies that the Commonwealth’s anti-kickback statute does not prohibit providers who participate in Pennsylvania’s Medical Assistance Program from either co-locating or leasing space to other providers or from sharing office staff. In fact, the 2023 amendment deleted the prohibition on providers renting or leasing space, shelves or equipment within a provider’s office to another provider and from allowing the paid or unpaid staff of a provider to be placed in another provider’s office.
However, while the Pennsylvania anti-kickback statute has been revised, it is important to note that all providers must still follow all other laws, including the remaining provisions of the Pennsylvania anti-kickback statute, licensing regulations, and the federal Anti-Kickback Statute and Stark Law. This includes the Pennsylvania Act 122 of 2013, which prohibits the placement of laboratory personnel in a provider’s office. That law still remains in effect, as do any others that may prohibit co-locating or leasing/renting space, shelves, or equipment of specific providers. This amendment only reflects changes made to the Pennsylvania anti-kickback statute.