OIG Approves Employed Physician Bonuses Based on Revenue from ASCs
A proposal to give physician employees a bonus based on the profits they generate from certain procedures performed at ambulatory surgery centers owned by their employer got a green light from the HHS Office of Inspector General (OIG) in an advisory opinion posted Oct. 13. The 30% bonus sailed through because it’s protected both by a statutory exception to the Anti-Kickback Statute (AKS) and a regulatory safe harbor that confers AKS immunity.
“There’s a real distinction between what you can do with your employees and what you can do with your independent contractors,” said attorney Eric Tower, with Blank Rome in Chicago.
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“This is one of the few advisory opinions where the arrangement falls into a safe harbor and they even reference a statutory exception,” Tower said. In past advisory opinions, “OIG has taken the position you couldn’t rely on a statutory exception if there was a safe harbor.” Tower said he has been told by OIG officials that other statutory exceptions didn’t apply (e.g., for discounts) because the safe harbor was more detailed.
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"OIG Approves Employed Physician Bonuses Based on Revenue from ASCs," by Nina Youngstrom was published in The Report on Medicare Compliance (Volume 32, Number 38) on October 23, 2023.