HHS’ Office of the Inspector General issued a favorable result regarding a proposal to offer discounts to certain ASCs in intraocular lenses and supplies in cataract surgery, law firm Epstein Becker Green said in a March 12 blog post.
Here are five things to know:
1. The proposal was for a medtech company to give discounts on intraocular lenses and cataract surgery supplies to ASCs, but only if physician practices bought and subscribed to the company’s software. This advisory opinion cannot be relied on by other companies or providers, cannot generally be used as evidence by others, and does not bind agencies other than HHS.
2. The OIG concluded it would not impose administrative sanctions on the requestor for the proposed arrangement. However, OIG explicitly said the proposal could involve prohibited remuneration under anti-kickback laws, if the requisite intent were present.
3. OIG said this price reduction was not a protected “discount” safe harbor because it was conditioned on more than just buying the discounted product. Even though it fell outside the safe harbor, OIG concluded the arrangement posed sufficiently low risk under anti-kickback laws to justify a favorable opinion.
4. OIG found the arrangement should not increase costs to federal healthcare programs and should not lead to overutilization. Additionally, the agency concluded the proposal presented a low risk of interfering with clinical decision-making, which is always a major concern in anti-kickback law analysis.
5. The key fact was that the physician practice paid full price for software, while the ASC got the item discount. OIG suggested the risk would have been much worse if the direction were reversed and the referral source got the financial benefit.
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