In a comment letter responding to the "Request for Information regarding the Anti-Kickback Statute, and Beneficiary Inducement Civil Monetary Penalty," the AMA urged the Office of Inspector General (OIG) to create a new value-based anti-kickback safe harbor to facilitate coordinated care and to promote well-designed alternative payment models (APMs). AMA calls for the safe harbor to be broad, covering both the development and operation of a model to allow physicians to transition to an APM, and to provide adequate protection for the entire care delivery process—including downstream care partners.

The AMA also recommended that OIG create an anti-kickback safe harbor for the sharing of cybersecurity tools and resources. The AMA stressed that any cybersecurity safe harbor be easy to understand, interpret and enforce so that donors and recipients can readily distinguish permissible activities from those that violate the anti-kickback statute. The AMA suggested that the current EHR safe harbor may act as template for a new cybersecurity safe harbor.

Other recommendations from the AMA include:

• Allowing personal services and management contracts that reward value and allow for incentive payments for efficient and better care
• Expanding the warranty safe harbor to include bundled payments
• Making the EHR safe harbor permanent and include covering replacement technology
• Creating policy guidance that meeting the promoting access to care Civil Monetary Penalty (CMP) exception gets Anti-Kickback Statute protection
• Establishing a new CMP exception from remuneration to allow for beneficiary incentives for adherence and management activities
• Asking for policy guidance to waive cost-sharing when the amount is nominal (i.e., when reasonable collection efforts cost more than would be collected)