Late final week, the Division of Well being and Human Companies Workplace of the Inspector Normal (“OIG”) posted Advisory Opinion No. 23-07 affirming the broad safety obtainable for compensation to employed physicians below the bona fide worker exception and secure harbor to the federal Anti-Kickback Statute (the “AKS”). The opinion highlights flexibility for healthcare suppliers looking for to compensate staff in ways in which align incentives with their employers, and notably for doctor practices to align employed physicians with use of the practices’ ambulatory surgical procedure middle (“ASC”) capabilities.
Within the opinion, the OIG thought-about a proposed bonus compensation methodology for doctor staff of a multi-specialty doctor follow (the “Follow”). The Follow operates two ASCs, every as a company division inside the similar authorized entity because the Follow. Beneath the proposed bonus methodology, doctor staff of the Follow who carried out procedures on the ASCs would obtain thirty % of the Follow’s internet earnings from the ASC facility price collections for these procedures.
The OIG opined that, though the bonus methodology would implicate the AKS, it might be protected by the statutory exception and regulatory secure harbor for workers. Particularly, the Follow licensed that every one bonus recipients can be bona fide staff of the Follow, and the compensation can be paid for “employment within the furnishing of any merchandise or service for which fee could also be made…below Medicare, Medicaid, or different Federal well being care applications.”
Notably, the OIG was clear that “an analogous association involving bonus funds to unbiased contractor physicians or different nonemployees or below a unique company construction (wherein, for instance, the physicians have been homeowners of the ASCs and paid themselves the bonuses contemplated by the proposed association as possession distribution) could elevate fraud and abuse considerations below the [AKS]”, since “[p]ayment buildings that tie compensation to earnings generated from companies furnished to sufferers referred by the compensated social gathering are suspect below the [AKS].” The proposed association can be permissible particularly due to the appliance of the bona fide worker exception and secure harbor and “regardless of the potential dangers of fraud and abuse….”
In reaching its conclusion, the OIG reaffirmed core structural options of the AKS and its embedded protections for worker compensation, together with that healthcare suppliers have broad flexibility in figuring out how one can compensate their staff, and that even compensation buildings that will carry fraud and abuse threat are protected if the compensation meets the necessities of an exception or secure harbor. These rules could provide necessary flexibility to practices looking for to align incentives for employed physicians, notably inside practices which have ASC capabilities. The OIG’s basic suspicion of compensation methodologies that hyperlink fee to earnings generated by a clinician, nevertheless, underscores the significance of working intently with authorized counsel in creating applicable compensation buildings, notably for complicated healthcare organizations. The members of the Sheppard Mullin Healthcare Workforce can be found to reply your questions and to assist your group obtain enterprise targets whereas sustaining compliance with the legislation.
