Forced to comply with a provision it opposes, HHS' inspector general's office is looking to providers for guidance on how it should issue advisory opinions relating to federal anti-kickback laws.
The recently enacted health insurance reform bill requires the inspector general to issue advisory opinions beginning Jan. 1, 1997. Advisory opinions will be given by the federal government to providers that are considering integrating. An opinion binds only the federal government and the parties who requested the opinion; other providers can't point to such opinions as a defense in an anti-kickback case. Opinions relate only to federal anti-kickback statutes and would not apply to self-referral laws.
According to an HHS spokeswoman, within the next two weeks the federal government will call for comments from providers and other groups on how the advisory-opinion statute should be implemented. Providers and other interested parties will be given two weeks to a month to respond, the spokeswoman said.
The law allows HHS to levy a service fee on providers who seek an advisory opinion, and it must determine how much providers will be charged, the spokeswoman said.
Providers say the advisory opinions are necessary to clear up questions surrounding the anti-kickback laws.
"They are needed to give additional guidance about specific transactions," said Mary Grealy, senior Washington counsel for the American Hospital Association. "They are also important because they are a process the hospital can trigger, rather than waiting for the I.G. to release something. This way providers can force (the inspector general) to look at a transaction before it happens."
Grealy said providers were generally pleased with the bill but will seek to make permanent the advisory opinion provision, which expires in five years.
Federal officials opposed the measure. Justice Department officials said looking at transactions before they were consummated required law enforcement officials to judge the intent of the providers. They also argued that giving individual guidance would tax federal resources.