Can ASCs Still Profit From Anesthesia? A Review of OIG Guidance

At the 19th Annual Ambulatory Surgery Centers Conference in Chicago Oct. 26, Scott Becker, JD, CPA, partner at McGuireWoods, and chairman of the firm's healthcare department, discussed Office of Inspector General Opinion 6-6 guidance regarding anesthesia in ASCs.

Mr. Becker described a request for an OIG advisory opinion that sought to stop the practice of physician groups and ASCs participating in anesthesia profits. There, the OIG Opinion described a management fee model and a "company" model. The OIG's advisory opinion broadly stated that these practices can raise anti-kickback issues and the OIG would not offer a favorable opinion to the practice. The opinion was likely sought by a group desiring a negative opinion, with the intent of chilling the development of such models.

The OIG's opinion is causing many ASCs to reevaluate and restructure their relationship with anesthesia, according to Mr. Becker.

Mr. Becker said that while it's not categorically illegal for physicians and ASCs to own and profit from anesthesia providers, they have to have the correct intent, such as wanting to improve the quality of care and efficiency and/or better assure coverage and better coordinate the cost of care. If the intent is only to improve profit, the practice may be more likely to come under scrutiny.

While no financial relationship may be the safest model, with the right intent, other models may also be acceptable. Direct employment of anesthesia providers may be one of the safest routes; however, the OIG did not bless this concept. In contrast, explicitly or implicitly trading the ability to practice at the center for a part of the anesthesia providers' profit is one of the riskiest cases and the most direct concern under the kickback statute. The OIG has long commented that any kickback or remuneration in exchange for the ability to see patients is not lawful.

"The more the group integrates the [anesthesia] services and becomes a true provider of services and for the right reasons, the easier it is to defend," Mr. Becker said. "The more they're marking up services but not doing anything from an anesthesia perspective or having a proper business, care or efficiency purpose (i.e., aside from profiting from anesthesia), the harder it may be to defend."

This is an area where providers want to tread carefully and want to assure they are focused on the proper purposes and are using a model that helps directly meet those purposes. Providers also want to remain alert to further developments.

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