Mark F. Weiss, JD
LEGAL UPDATE
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O U T P AT I E N T S U R G E R Y M A G A Z I N E O N L I N E | M A R C H 2 0 1 4
The Dangers of Trying to Profit from Anesthesia
Risk running afoul of anti-kickback law when you take what's not yours.
P
hysician-owners
who try to profit
from anesthesia
services often violate,
knowingly or unknow-
ingly, the Anti-
Kickback Statute, put-
ting themselves at risk
of fines, disqualifica-
tion from federal
healthcare programs
and even incarceration. These so-called "company model" arrange-
ments, in which the physicians' practice employs the anesthesia
providers and bills for their services, also raise a pair of serious com-
pliance questions:
• Is granting exclusive rights to a physician-owned anesthesia com-
pany a kickback in itself?
• Would participation in a company model arrangement invalidate
the facility's use of the statute's ASC safe harbor?
The following scenarios show how the company model might unex-
pectedly spark regulatory trouble.
Exclusive arrangement
The Green Acres ASC is in desperate need of new business. For 10
years, it has contracted with Centerville Anesthesia, a group of 6 anes-
thesiologists working full-time at the facility, to provide services.
A group of 9 surgeons approaches Green Acres. They're interested
in investing in the ASC and bringing all of their cases to its ORs. But,
DON'T GET TRAPPED Is your facility's anesthesia arrange-
ment a kickback liability risk?
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