An anesthesia-services provider's proposals to enter into contracts with physician-owned outpatient surgery and endoscopy centers could lead to liability under the anti-kickback statute and possible administrative sanctions, the HHS' inspector general's office said.
According to the May 25 advisory opinion, the provider submitted two proposed arrangements in which it would enter into contracts with ambulatory surgical centers.
The anesthesia-services provider, which has 31 physician members and 10 physician employees, currently assumes responsibility for employing staff at the centers and bills patients and payers, including Medicare, for payment for anesthesia needs.
The organization also said that it is under pressure to compete with other anesthesia groups that engage in similar practices to what it has proposed to the inspector general's office.
In the advisory opinion, the inspector general's office said the provider believes “its financial risk lies in balancing the expense of hiring anesthesia personnel against the revenue it receives from the anesthesia services, the volume of which is controlled by the centers' physician-owners.”
In one proposal, the provider would continue to provide exclusive anesthesia services but would pay the ambulatory surgical centers a per-patient fee for “management services,” such as adequate space for its physicians and pre-operative nursing assessments. Medicare patients would be excluded.
“We think there is risk that the requestor would be paying the 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,” the inspector general's office said.
In the second proposal, the ambulatory surgical centers' owners would own and establish separate companies for anesthesia services and engage with the anesthesia-services provider as a contractor. The subsidiary companies would retain profits.
The advisory opinion concluded that this proposal would “pose more than a minimal risk of fraud and abuse.”