Whenever an entity other than the professional service provider bills for physician fees of any kind, including anesthesia, there can be AKS questions.
The OIG reviewed a proposed relationship in which an anesthesia provider billed and retained all collections from patients and third-party payors, including Medicare, but was also contractually obligated to pay the ASC a “management services” fee for the non-Medicare patients. It was not entirely clear exactly what management services were provided for the payment to the ASC, and whether such payments were fair market value for the services. In OIG Advisory Opinion No. 12-06 (2012), the OIG concluded that the ASC would be paid twice for the same activity: once by collecting the facility fee from the payor (designed to compensate it for the activities it undertook) and again by the management fee paid to the ASC by Anesthesia. Worse, at least optically was the fact that the “management fee” was calculated on a per patient basis (for items/services supposed to be covered by the facility fee only). In short, this arrangement had all of the hallmarks of a referral fee.
In another proposed arrangement reviewed in the same OIG Advisory Opinion, the OIG took on a version of the Company model, where, subsidiary companies owned by the ASC would contract with an anesthesia provider and bill for the provider’s anesthesia services. The subsidiary companies would pay Anesthesia a negotiated rate. The OIG concluded that this relationship would pose more than a minimal risk of fraud and abuse, because the subsidiary companies would generate anesthesia revenue that would be paid to them even though they were not Medicare certified under Title 42 C.F.R. Part 416.
A third example challenged by the OIG was where a fee opportunity by the engaging medical group was created where none would otherwise exist. In OIG Advisory Opinion No. 13-15 (2013), the OIG reviewed a proposed relationship where a psychiatrist/anesthesiologist from the group would provide all anesthesia services, except when on vacation. During vacation coverage, a separate anesthesia group provided the anesthesia but was required to reassign its right to bill and collect for anesthesia services to the group in exchange for a per diem rate. The OIG concluded that the arrangement was designed to permit the psychiatry group to do indirectly what it could not do directly, that is, to receive compensation which it otherwise was not entitled to receive. Again, the federal government concluded that the arrangement presented a significant risk that the retention of anesthesia revenues in this circumstance raised the presumption that this was nothing more than a referral fee.
What we can tell from these OIG opinions and other decisions, is that an ASC can provide billing and collection services for Anesthesia, but they must be at Fair Market Value, and otherwise meet the personal services safe harbor of the AKS. If there is excessive revenue being retained by the ASC, or where there is really no service being provided by the ASC to Anesthesia, the parties run a risk that the arrangements may be considered a mere referral fee and run afoul of the AKS. Given that anesthesia-related billing revenue continues to be a frequent focal point for many ASCs, ASCs and their owners are encouraged to carefully review their relationships with anesthesia providers to ensure that they are compliant and not running afoul of the anti-kickback laws.