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LEGAL UPDATE
The OIG concluded that the proposed arrangement could potentially be seen as generating prohibited remuneration under the Anti-Kickback Statute, and that the office could potentially impose administrative sanctions in connection with it.
The bottom line
This advisory opinion once again demonstrates a fact lost to many when discussing "company model" controversies and similar potential AntiKickback Statute violations: that they generally don't fit into an available safe harbor, such as the personal services or employment safe harbors.
This is not just because payment to the referral-receiving physician is not set in advance and will vary with the value or volume of referrals, but also because those safe harbors only apply to payments from a principal to an agent, not to payments from an agent (the anesthesia group) to the principal (the psychiatric group). In this case, the discount that permits the referral source to profit from the arrangement (the difference between the per diem and the amount collected for services rendered) is a payment to the principal.
An arrangement that doesn't fit the safe harbor isn't in and of itself fatal, but the opportunity to profit from one's referrals raises significant concerns of prohibited remuneration, and may trigger anti-kickback violations. As the OIG points out, the hospital's grant of anesthesia services rights to a referral source might itself be a kickback. This is completely on point with anesthesia contracts between ASCs and "anesthesia companies" controlled by surgeons who bring their cases to the facilities' ORs. Anyone considering entering into an arrangement that potentially violates the federal Anti-Kickback Statute is well advised to first consult with counsel who'll survey its legality.
Mr. Weiss (markweiss@advisorylawgroup.com) is an attorney practicing with the Advisory Law Group in Santa Barbara, Calif.
