In its first negative advisory opinion, HHS' inspector general's office told a provider that not collecting copayments from certain Medicare patients may violate the anti-kickback statute.
MODERN HEALTHCARE last week obtained a copy of the advisory opinion, which has yet to be released publicly.
It's the fourth one issued by the inspector general's office since regulations took effect earlier this year giving providers the chance to seek guidance from the agency on their proposed transactions (March 24, p. 14).
In its other three, the agency found the transactions to be legal.
This latest opinion was requested by an unnamed ambulatory surgical center. D. McCarty Thornton, the inspector general's chief counsel, signed the advisory on Sept. 25.
Some current and prospective patients at the surgery center are retirees who have employer-sponsored Medicare complementary coverage to cover the cost of Medicare copayments. This complementary coverage pays the copayment for professional fees from the doctor, but coverage for copayments for facility fees has been denied. That's because the surgery center isn't a participating provider in the network that administers the complementary coverage.
The surgery center wanted to know if it would violate the anti-kickback statute and other federal laws if it pursued collecting the facility fee copayment only from the insurance company, and not from the patients.
The anti-kickback statute bars any form of remuneration to induce Medicare patient referrals.
In his opinion, Thornton said the proposed arrangement could be a civil violation of the Health Insurance Portability and Accountability Act and criminal violation of the anti-kickback statute.
Michigan healthcare attorney Kenneth Marcus said the advisory opinion is a warning to all providers.
"This opinion, the first negative opinion issued to date, makes an extremely narrow interpretation of applicable law," Marcus said.