OIG Issues Limited but Favorable Advisory Opinion on Proposed Bonuses to Physician Employees Paid From ASC Profits

Lexology December 1, 2023
McDermott Will & Emery

The US Department of Health and Human Services Office of Inspector General (OIG) recently issued Advisory Opinion (AO) 23-07, analyzing a proposed arrangement to pay physicians in a multi-specialty group practice bonuses that tie to profits from the practice’s ambulatory surgery centers (ASCs). Based on the specific facts and circumstances of the proposed arrangement, OIG reached a favorable conclusion, finding that the proposed arrangement would qualify for protection under the broad safe harbor for employee compensation under the federal Anti-Kickback Statute (AKS). While AO 23-07 is a helpful confirmation of the breadth of the employee compensation exception and safe harbor, we note this opinion is narrowly focused on and limited to the specific facts presented—namely, that a physician practice’s ASCs,...

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