Structuring Gainsharing Arrangements and Bundled Payments: Latest Developments

Complying With Legal and Regulatory Requirements, Overcoming Implementation and Operational Challenges

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, March 1, 2017
Recorded event now available

This CLE webinar will provide healthcare counsel with a review of current issues related to gainsharing arrangements and bundled payment programs. The panel will outline implementation and operational aspects of gainsharing, and best practices for hospitals and physicians to minimize legal and business risks.


The Medicare Access and CHIP Reauthorization Act of 2015 (MACRA), which includes significant changes related to gainsharing, went into effect on April 16, 2015. MACRA amends the gainsharing civil money penalties (CMP). The changes mean that gainsharing incentives are only prohibited when they reduced “medically necessary services.” This should present new opportunities for hospitals and physicians.

Both gainsharing and bundled payment arrangements support hospitals and physicians working together to improve the quality and efficiency of patient treatment. Gainsharing gives physicians a share of a hospital’s cost savings resulting from the physician’s efforts. Bundled payment arrangements provide a single payment for a package of services delivered by a group of providers during a defined episode of care.

Healthcare counsels face a number of legal and regulatory hurdles in structuring gainsharing and bundled payment arrangements. These arrangements must be carefully structured to comply with the gainsharing CMP, the Anti-Kickback statute, and the Stark Self-Referral law either under a traditional fraud and abuse analysis or using the Bundled Payments for Care Improvement (BPCI) waivers. Other legal and business challenges revolve around state laws, provider relationships, insurance markets, and fair market value determinations.

Listen as our authoritative panel of experienced practitioners examines gainsharing and bundled payment arrangements, and the key operational and regulatory concerns when structuring and documenting the arrangements.


  1. Bundled payments programs and current CMS initiatives
  2. Trends in gainsharing arrangements
  3. Clinical and operational issues in structuring bundled payment and gainsharing models
  4. Legal and FMV considerations when structuring arrangements
  5. Documenting a bundled payment and/or gainsharing model


The panel will review these and other key issues:

  • How will MACRA impact gainsharing arrangements?
  • What are the key operational and regulatory concerns for healthcare providers considering bundled payment and gainsharing arrangements?
  • How do bundled payment and gainsharing arrangements differ from co-management arrangements and ACOs?
  • What critical provisions should be documented when formalizing these arrangements?
  • What are different types of gainsharing arrangements and what are key features of each?


Curtis H. Bernstein, CPA/ABV, ASA, CVA, MBA, Principal
Pinnacle Healthcare Consulting, Denver

Mr. Bernstein specializes in providing valuation, transaction advisory, strategic and operational consulting services to clients. He has extensive experience working closely with hospital systems, physician groups, ambulatory surgery centers and other healthcare providers. He also provides valuation services in the areas of business valuation and complex compensation structures.

William T. Mathias, Shareholder
Baker Donelson Bearman Caldwell & Berkowitz, Baltimore

Mr. Mathias represents clients across the U.S. in all areas of the health care industry, with a particular emphasis on fraud and abuse, internal and government investigations, and corporate compliance matters. His practice focuses on advising clients on compliance with the federal antikickback law, the Stark physician self-referral statute and the federal civil monetary penalty provisions. He currently serves as a vice chair of the American Health Lawyers Association’s Fraud & Abuse Practice Group.

Girard F. Senn, President
Clinical Benchmarking, Glen Ellyn, Ill.

Mr. Seen actively participates in a variety of engagements focused in perioperative and cardiovascular product lines. He is a former Executive Director and founder of OR Benchmarks Inc. where he developed tools and software to benchmark services in the operating room, cath lab and endoscopy. Prior to that, Mr. Seen was the Program Director for Surgical Services at the University HealthSystem Consortium, where he was responsible for purchasing contracts totaling over $1 billion. His hospital based positions include Vice President of Patient Care as well as a Director of Surgical Services.


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The seminar tackled a difficult issue that we need to understand better.

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Health Law Advisory Board

Lowell C. Brown


Arent Fox

Jennifer L. Evans



Ryan S. Johnson


Fredrikson & Byron

Gina M. Kastel


Faegre Baker Daniels

Karen S. Lovitch


Mintz, Levin, Cohn, Ferris, Glovsky and Popeo

David A. Manko


Rivkin Radler

John J. Miles


Ober Kaler

C. Elizabeth O'Keeffe


Wyatt, Tarrant & Combs

J. Peter Rich


McDermott Will & Emery

Donald H. Romano

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Drinker Biddle & Reath

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