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absence of regulations against, or even a prevailing disposition of judgment on, billing for separate facility fees. "The wide variety of fact patterns must be analyzed on a case-by-case basis," the opinion read,
"before specific conclusions can be reached about the criminal, civil or
disciplinary consequences of particular conduct by corporations or
physicians." This statement supports the position that facility fee payment is a contractual issue between a physician and an insurance company, and that there is no absolute prohibition against paying or receiving such a fee if both parties agree to it.
The contractual nature of this issue is illustrated in the merger of
Oxford Health Plans with UnitedHealthcare. Oxford, which has paid
facility fees for the performance of office-based surgical procedures,
has notified its participating providers that it will no longer do so, in
order to conform with United's policy, which does not allow such payments.
Watch your step
Physicians should be aware, however, that the state department of
health has also advised that under certain circumstances, such as
when the corporate entity being paid the facility fee is owned by a
non-professional, the arrangement may constitute professional misconduct and/or criminal violations. Our law firm and the Medical
Society of the State of New York have issued replies that this opinion is based on a misinterpretation of the law.
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