P4P arrangements can carry legal issues

Chicago - As with any compensation arrangement between providers and health plans involving federal healthcare programs, parties to a pay-for-performance arrangement need to be mindful of possible fraud and abuse, according to Kathryn A. Roe, of Neal, Gerber & Eisenberg LLP in Chicago.

"That means asking whether the contemplated arrangement implicates the federal anti-kickback or Stark laws or their state counterparts, and if so, whether there is an available safe harbor or exception," Roe says.

Interference issues. Another consideration might be claims that pay-for-performance results in plan interference with the patient-provider relationship. "That was a common concern in the '90s with the rise of plan utilization management and other similar programs," Roe says. "Health plans responded by adding the managed care contracts provider acknowledgments of their ultimate responsibility for care rendered to patients. Such clauses could have equal application to pay-for-performance arrangements."

- Tracey Walker