Most of the advisory opinions coming out of the HHS' inspector general's office are favorable to providers who voluntarily ask whether their proposed ventures would violate federal anti-kickback laws.
That could be because there's an unwritten "don't ask, don't tell" policy among providers, who aren't rushing to alert the inspector general to transactions on shaky legal ground.
Since the inspector general began issuing opinions on these matters in mid-1997, two-thirds of its decisions have given the green light to the proposed arrangements.
But with only four opinions issued so far this year, providers aren't exactly begging for advice, said Robert Falk, an attorney with Powell Goldstein Frazer & Murphy in Washington.
"Think about the thousands of transactions with anti-kickback implications that happen every year, and there were only seven opinions last year," Falk said. "The inspector general expected to be much busier."
The latest advisory opinion, dated April 15, is a departure from the favorable trend. The inspector general said that a proposed contract between a medical practice management company and a physician practice would violate anti-kickback laws.
The contract, according to the opinion, said that the management company would be reimbursed for its costs and paid a percentage of net practice revenues.
Providers typically ask for an opinion for one of three reasons, Falk said.
First, providers use the process if they are sure they will get a clear, or positive, answer.
Second, if there are some questionable aspects about the proposed transaction, an attorney may apply for an opinion to get his or her clients out of a bad deal.
Finally, providers might want an opinion if they want to copy a deal structure used successfully by a competitor.
"If you can't do it, your competitor usually can't either," Falk said.
Providers dancing in the gray areas don't seek the inspector general's comments.
"You don't want to go to the inspector general unless you feel good about getting a favorable ruling," said Stuart Lockman, an attorney with Honigman Miller Schwartz and Cohn in Detroit.
So far this year the inspector general has issued two positive opinions and one other negative opinion:
* In its first advisory opinion this year, the inspector general concluded that an arrangement between a durable medical equipment manufacturer and a third-party billing company could cause the companies to be sanctioned, excluded from federal health programs or slapped with civil monetary penalties.
* In its second advisory opinion, the inspector general said it would permit proposed contracts between a drug manufacturing company and pharmaceutical wholesalers.
* In an April 6 opinion, the inspector general favored an arrangement in which a hospital system would provide an ambulance to a municipal fire department.