Physician group may employ part-time physicians for endoscopies

December 24, 2008

A physician group's proposal to employ part-time two physicians to perform endoscopies would not generate prohibited remuneration under the Anti-Kickback Statute, the Department of Health and Human Services Office of Inspector General (OIG) said in an advisory opinion posted December 15.

This material originally appeared in the December 19, 2008, issue of Health Lawyers Weekly, a publication of the American Health Lawyers Association (www.healthlawyers.org).

A physician group’s proposal to employ part-time two physicians to perform endoscopies would not generate prohibited remuneration under the Anti-Kickback Statute, the Department of Health and Human Services Office of Inspector General (OIG) said in an advisory opinion posted December 15.

The requestor of the opinion is a nonprofit, tax-exempt corporation that meets all the criteria of a “physician group” set out in 42 C.F.R. § 411.352, OIG explained. The requestor proposes to employ two physicians on a part-time basis to perform endoscopies on the requestor’s premises.

Each of the proposed part-time physicians also has a separate medical practice, at separate premises, where he or she will continue to see patients outside the part-time employment relationship with the requestor. In addition, the requestor said it will pay each physician a salary that will be based on the fair market value of the professional services that he or she personally provides while employed by the requestor.

OIG noted at the outset that the Anti-Kickback Statute does not prohibit payments made by employers to their bona fide employees for employment in the furnishing of items or services for which payment may be made under Medicare, Medicaid, or other federal healthcare programs.

OIG said for the purposes of its opinion it would rely on the requestor’s certification that the physicians are bona fide employees.

According the opinion, because the requestor also has certified that the part-time physicians will be employed to perform endoscopies, which are services for which payment may be made in whole or in part under Medicare, Medicaid, or other federal healthcare programs, and that the compensation they will receive will be for professional services they personally perform, the Proposed Arrangement would satisfy the criteria set forth in section 1128B(b)(3)(B) of the Act and 42 C.F.R. § 1001.952(i).

Therefore, the wages paid to the physicians by the requestor “would not constitute prohibited remuneration under the anti-kickback statute,” OIG said.

The opinion noted, however, that if the part-time physicians are not bona fide employees, its opinion “is without force and effect.”

Advisory Opinion No. 08-22 (Dept. Health and Human Servs. Office of Inspector Gen. Dec. 8, 2008).