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M A R C H 2 0 1 4 | 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
LEGAL UPDATE
they say, they'll also need to bring along their own anesthesiologists,
the Black Hat Anesthesia Company.
The Green Acres administrator notifies Centerville Anesthesia that
the ASC has elected to terminate its services, exercising the without-
cause provision in their contract. However, the administrator assures
them that all of the anesthesiologists will be offered jobs with Black
Hat. The catch: Those jobs will be compensated at a lower rate due to
the profit tapped by Black Hat's physician-owners, something that's
not within the administrator's control, and perhaps not even discussed
during the termination meeting.
The administrator may have cleared the way for more green to flow
into Green Acres. But she probably hasn't considered whether granti-
ng an exclusive contract to Black Hat may itself be a kickback, and a
violation of federal criminal law.
The Anti-Kickback Statute prohibits rewards for the referral of fed-
eral healthcare program patients. While many people commonly envi-
sion this as a ban on cash transactions, the statute doesn't make any
such distinctions. A reward is a reward, as far as regulators are con-
cerned.
The new surgeons demanded the anesthesia contract for Black Hat,
in which they obviously saw value, as a condition for bringing their
business to the ASC. That's a kickback. Additionally, the Department
of Health and Human Services' Office of Inspector General has stated
on numerous occasions that the opportunity to generate a fee (such
as those that Black Hat will earn for the surgeons) can constitute ille-
gal remuneration under the statute.
As a result, in this scenario the likelihood is high — in fact, it's
almost a certainty — that the ASC, the new surgeons and Black Hat
all engaged in a conspiracy to violate the Anti-Kickback Statute.
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