Anesthesia Service Contracting can Raise Compliance Issues; the OIG can Help

Anesthesia practices are more and more feeling that surgical groups or other providers are pushing them into unfavorable financial deals. If you find yourself in this predicament, you have a way to push back by using a recent advisory opinion from the HHS Office of Inspector General (OIG).

 In one OIG reviewed deal, the OIG found that an arrangement between an anesthesia group and a psychiatric group potentially violated the Anti-Kickback Statute and could trigger penalties if the deal went forward, according to Advisory Opinion 13-15. Under the deal, the anesthesia group would provide care for patients of a psychiatric group who were undergoing electroconvulsive therapy (ECT) at the hospital. The anesthesia group would reassign its billing rights for these services to the psychiatric group, which would pay the anesthesia group a fixed, per diem amount and keep the difference between what Medicare paid and the anesthesia group’s fee. The anesthesia group that requested the opinion stated the fixed, per diem amount was well below fair market value. 

The OIG could not give an opinion on whether the payments were fair market value. The OIG’s concern is that the providers will order more services simply because it has a financial incentive to do so. The Psychiatric group would likely dictate the charges to be submitted for reimbursement.

 Even though advisory opinions only apply to the requestor, you should start your deal negotiations by sharing this with the surgical group. Also use Advisory Opinion 12-06. That opinion focused on two fee arrangements with an anesthesia group, which the OIG also found could violate the statute. Tell the group that based on the advisory opinions, you don’t believe a proposed deal is legal.

 Other things to consider:

  1. Review contracts for safe harbor provisions
  2. Inform groups, providers of potential risks
  3. Check contracts for fair market value
  4. Request your own advisory opinion
  5. Insure that personal services & management contracts safe harbor requirements

 Official resources