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COMPLETE COMPLIANCE
Getting to 100% on One-Third Tests
Q
Physician-owners have to perform at
least one-third of their cases in their
ASCs to comply with the federal AntiKickback Statute. How can you ensure compliance, and what steps can be taken if a
physician is not compliant?
SELECTIVE ENFORCEMENT Don't
disregard certain surgeons who fail to
meet the one-third tests while cracking
down on other non-compliant
physicians.
A
Remember that the "one-third" tests
for ASC investment eligibility differ
depending on whether the ASC is
single- or multi-specialty. In a single-specialty center, at least one-third of each
physician-owner's medical practice income from all sources for the previous fiscal
year or 12 months must be derived from performing ASC procedures. In a multispecialty center, a physician-owner must meet this one-third income test and also
perform at least one-third of ASC procedures in the owned facility.
Ongoing communication with physician-owners can help to ensure a solid track
record of compliance. In order to assess compliance, an ASC might require each
physician-owner to provide an annual compliance certificate or attestation. If a
physician is unwilling to provide such attestation, or if the ASC has reason to
question it, facility leaders may want to consider asking the physician to provide
access to information that would demonstrate the one-third compliance.
Many ASCs incorporate such disclosure requirements into their governing documents. As a result, a physician-owner's failure to provide the requested compliance details can give a center the valid right to buy back ownership interests.
Be wary of selectively enforcing the one-third tests. It won't do you any favors
with regulators if you disregard physician-owners who fail to meet the quota while
performing highly profitable cases, but crack down on the non-compliant physicians whose cases net lower reimbursements.
— Joshua Kaye, JD
Mr. Kaye (joshua.kaye@dlapiper.com) is a partner and co-chair of the health care sector at global law firm DLA Piper's Miami office.
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