Wanna partner with an anesthesiologist, or some other secondary provider? Got a clever idea about how to move the money around? OIG tells you about some arrangements that won't fly.
This week OIG reviewed a request for advisory opinion from an anesthesiology practice who wondered whether two proposed business 
arrangements they were considering with a chain of ASCs (run by physicians practices) would pass muster with CMS. The ASCs and the anesthesiologists had already worked together, billing Medicare et alia under normal protocols.
In one scenario, the anaesthesiology people proposed to pay the ASCs for "Management Services" including pre-op nursing; work and storage space for their doctors, as well as for their files and gear; and "assistance with transferring billing documentation to the Requestor’s billing office."
The anesthesiologists would be charged by the ASCs "in the form of a per-patient fee," and these fees "would be in addition to, and not in lieu of, the facility fees that the Centers would continue to bill Medicare and private payors in the same amounts as currently billed." This would also be an exclusive deal -- no other anesthesiologists would be used.
The anesthesiologists assured OIG that the fees would be "set at fair market value and would not take into account the volume or value of referrals or any other business conducted between the parties," and that Federal health care program patients treated at the ASC "would be excluded from the Management Services fee calculation."
In a separate scenario, the docs running the ASCs would set up new companies ("Subsidiaries") that would handle anesthesiology services for the ASCs, including billing, and hire the anesthesiologists as independent contractors.
OIG doesn't like the first scenario. They cite a "long-standing concern" with "carve out" arrangement whereby Federal health care program patients are excluded from a payment scheme; after all, they reason, as an exclusive vendor of anesthesiology to the ASCs, these anesthesiologists would be treating the Federal patients, too.
They also didn't like the idea of the ASCs charging the anesthesiologists for nursing and space; that meant they in effect "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."
Regarding the second scenario, OIG says some such arrangements with ASCs might be safe-harbored as a "bona fide employment relationship." But in this scenario, they say, "no safe harbor would protect the remuneration the Subsidiaries would distribute to the Centers’ physician-owners under Proposed Arrangement B." (In fact, though OIG doesn't say so, the arrangement with the "Subsidiaries" smacks a little of shell companies.)
OIG writes:
...we conclude that the Proposed Arrangements could potentially generate prohibited remuneration under the anti-kickback statute and that the Office of Inspector General (“OIG”) could potentially impose administrative sanctions on [name redacted] under sections 1128(b)(7) or 1128A(a)(7) of the Act (as those sections relate to the commission of acts described in section 1128B(b) of the Act) in connection with the Proposed Arrangements.
OIG says they can't say for sure that this would be a breach, but we're sure the practices consider themselves warned off. And so should you.