OIG Advisory Opinion 12-06: A Warning Regarding Impermissible Arrangements Between Anesthesiologists And ASCs - But A Warning To Whom?

On June 1, 2012, the U.S. Department of Health and Human Services, Office of Inspector General ("OIG") issued Advisory Opinion 12-06 (the "Opinion") concerning two proposals by an anesthesia services provider (the "Requestor") for restructuring its relationship with several ambulatory surgery centers ("ASCs"). In concluding that both proposals run the risk of generating prohibited remuneration under the federal anti-kickback statute, the Opinion potentially upends long-standing assumptions concerning permissible ancillary and multi-specialty arrangements.

The Requestor is a sizeable anesthesia group that is the ASCs' exclusive anesthesia services provider. The Requestor independently bills for professional services furnished by its anesthesiologists at the ASCs. The ASCs independently bill a facility fee to all payors to cover the materials and ancillary staff required to operate the ASCs.

Under the first proposed transaction ("Proposal A"), the Requestor would remain the ASCs' sole provider of anesthesia services but would pay the ASCs a per-patient fee, exclusive of federal health care beneficiaries, in exchange for certain management services (e.g., pre-operative nursing assessments, procuring office space, and transferring billing documentation).

In assessing Proposal A, the OIG first reiterated its long-standing distaste for arrangements that "carve-out" payments related to federal health care beneficiaries, noting that such arrangements implicate the anti-kickback statute by "disguising" remuneration from federal referral sources through payments purportedly unrelated to federal health care programs. Since the Requestor would continue to serve as the sole provider of anesthesia services to all of the ASCs' patients, including federal beneficiaries, the OIG found that the carve-out would not save the management fee from constituting improper remuneration. Specifically, by collecting both a management fee from the Requestor and a facility fee from payors, the OIG concluded that the ASCs would be receiving double payments for the same services and therefore would be unduly influenced to keep the Requestor as their exclusive provider of anesthesia services to all patients.

Under the second proposed transaction ("Proposal B"), the ASCs' physician-owners would form wholly owned subsidiaries for the purpose of providing anesthesia services to ASC patients. The subsidiaries would bill for and furnish all anesthesia services, and would...