OIG: Anesthesia Arrangements With ASCs Could Lead to Trouble

Two proposed arrangements between anesthesiologists and physician-owned facilities could lead to administrative sanctions, according to a Department of Health and Human Services Office of Inspector General release.

In the situation, the anesthesia provider would pay management services fees to an outpatient surgery or endoscopy center and the outpatient center would provide preoperative nursing assessments, space for the anesthesia provider's staff and billing assistance, on a per-patient basis and excluding patients in federal healthcare programs.

"In short, the Centers would be paid twice for the same services, and the additional remuneration paid by the Requestor in the form of the Management Services fees could unduly influence the Centers to select the Requestor as the Centers' exclusive provider of anesthesia services. Based on the facts presented here, we think there is risk  that the Requestor would be paying Management Services fees with regard to non-Federal healthcare program patients to induce the Centers' referral of all of its patients, including Federal healthcare program beneficiaries," said Chief Counsel to the Inspector General Gregory E. Demske, in a letter from the OIG.

The second arrangement outpatient center owners create a subsidiary to provide anesthesia services to patients and hire the anesthesia provider as an independent contractor for their services. This would create the situation where the physician owners receive profit from anesthesia services. The OIG would not issue a positive opinion on the relationship.

"The OIG has stated on numerous occasions its view that the opportunity for a referring physician to earn a profit, including through an investment in an entity for which he or she generates business, could constitute and illegal inducement under the anti-kickback statute," Mr. Demske said.

OIG said the anti-kickback statute could be implicated in both situations. While there are several safe harbors that could potentially apply to PCs and LLCs, Mr. Demske said "No safe harbor would protect the remuneration on the Subsidiaries would distribute to the Centers' physician-owners under Proposed Agreement B."

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