PA Changes Anti-Kickback Rules on Co-Location of Medical Assistance Program Providers | Ballard Spahr LLP

On January 14, 2023, the state Department of Human Services published a final rule, 53 Pa.B. 376, to amend the Pennsylvania Human Services Code (Code) by removing obstacles that made it harder for providers to share costs. This amendment is intended to help providers pursue a more integrated approach to health care delivery.

Specifically, the amendment clarifies that Pennsylvania’s anti-kickback statute no longer prohibits providers participating in Pennsylvania’s Medical Assistance Program (MA Program) from either (1) co-locating or leasing space to other providers, or (2) sharing office staff.

Section 1407(a)(2) of the Code is the Commonwealth’s anti-kickback statute. The Section provides that 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 MA Programme. It also prohibits remuneration for 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 MA Program.

The Pennsylvania Department of Human Services promulgated regulations in 55 Pa. Code § 1101.51 with examples of specific conduct that would violate Section 1407(a)(2). Until now, the regulation had included a general prohibition on MA Program providers 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. This had presented significant barriers to co-located providers seeking to participate in the MA Programme.

While the state Department of Human Services had previously developed a statement of policy and process for granting waivers for this prohibition, the newly published final rule, 53 Pa.B. 376, amends Section 1101.51 and removes the prohibitions on co-location and placement of staff from another provider.

The new rule should make it easier for providers participating in the MA program to share costs and office resources, which will be a boon to providers and patients in Pennsylvania. That said, there may be other laws, including remaining provisions of Pennsylvania’s anti-kickback statute, licensing regulations, and the federal anti-kickback and Stark Laws, that need to be addressed when considering particular leasing and/or co-location arrangements.

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