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Hand-Healthy Hand Scrubs - December 2013 - Outpatient Surgery Magazine

Outpatient Surgery Magazine, providing current information on Surgical Services, Surgical Facility Administration, Outpatient Surgery News and Trends, OR Excellence and more.

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Page 33 LEGAL UPDATE viding the services for ECT cases, the anesthesia group would reassign its right to bill and collect for the services to the psychiatric group. The psychiatric group would then pay the anesthesia group a per diem rate, and keep the difference between that rate and the amount it collected. Authorities' analysis The anesthesia group presented this proposed arrangement to the OIG, which has stated on numerous occasions that an opportunity to generate a fee can be considered illegal remuneration under the Anti-Kickback Statute, even if no payment is made for referrals. In the resulting advisory opinion, the OIG ruled that the proposed arrangement wouldn't qualify for protection under the statute's safe harbors for personal services and management contracts. Those only apply to payments made by a principal to an agent. No safe harbor would protect the funds that the psychiatric group would net from the anesthesia group. Failure to comply with a safe harbor doesn't necessarily render an arrangement illegal. But, the OIG continued, the proposed arrangement seemed designed to permit the psychiatric group to do indirectly what it could not do directly; that is, gain compensation (a portion of the anesthesia group's revenues) in return for referring patients to the anesthesia group for anesthesia services. Although it wasn't officially stated within the scope of the opinion, the OIG said it couldn't exclude the possibility that: • the hospital pushed for the initial carveout to reward the psychiatric group for referring patients to the hospital; • the hospital leveraged its control over anesthesia referrals to induce the anesthesia group to agree to the carveout; and • the anesthesia group agreed to the carveout in exchange for access to the hospital's stream of anesthesia referrals.

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