3 5
O C T O B E R 2 0 1 5 | 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
arm's-length transaction (that is, one in which unaffiliated parties are
acting independently)? Did the parties utilize national compensation
surveys, a compensation appraisal expert, or some other reliable and
substantiated method of determining fair market value?
• Did the parties to the arrangement ensure that none of the com-
pensation, in any way, in whole or in part, is based on the volume or
value of any referrals or business generated between them for which
payment may be made, in whole or in part, by federal healthcare pro-
grams?
Keep your leadership legal
Similarly, you should perform a legal compliance review for any other
arrangement between or among a surgical facility, its physicians and
any other facility or provider. This includes office staffing arrange-
ments. If the result of any arrangement is to transfer financial risk to
the other contracting party, the arrangement may be non-compliant.
Although the OIG's fraud alert focused on Anti-Kickback Statute com-
pliance (see "About the Anti-Kickback Statute"), these types of finan-
cial arrangements may implicate other anti-fraud and anti-abuse laws,
including the federal Stark Law against self-referrals, the federal False
Claims Act and their respective state counterparts. As always, consult
with your legal counsel or an attorney experienced in healthcare busi-
ness law for a full overview. OSM
Mr. Fanburg (jfanburg@bracheichler.com) chairs the health law practice group at Brach Eichler in
Roseland, N.J., and is the firm's managing member.
Ms. Dornfeld (ldornfeld@bracheichler.com) is a member of the firm's health law practice group.
