A proposed arrangement that would allow a physician group that provides cancer treatment services to lease space, equipment, and personnel services to urologist groups from which it receives patient referrals could violate the anti-kickback statute and subject the parties involved to sanctions, according to an advisory opinion from the Office of Inspector General (OIG). The OIG concluded that “there is a significant risk that the proposed arrangement would be an improper contractual joint venture that would be used as a vehicle to reward the urologist groups for their referrals.”
“The OIG has long-standing concerns about certain problematic joint venture arrangements between those in a position to refer business, such as physicians, and those who furnish items or services for which Medicare or Medicaid pays, especially when all or most of the business of the joint venture is derived from one of the joint venturers,” the opinion explained. In 2003, the OIG issued a Special Advisory Bulletin on Contractual Joint Ventures. The OIG said the proposed arrangement shares several elements with the bulletin’s example of a suspect joint venture.
The OIG could not definitively find that the proposed arrangement violates the anti-kickback statute because to do so would require a determination of the parties’ intent. Nonetheless, the advisory opinion stated that the arrangement could potentially generate remuneration prohibited by the statute and that the OIG could impose administrative sanctions in connection with the arrangement.
OIG Advisory Opinion, No. 08-10, Aug. 19, 2008, Health Care Compliance Reporter, ¶500,189
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