Doctors worried about violating the federal anti-kickback law got a little breathing room from HHS last month when the Office of the Inspector General announced eight new safe harbors for the law and clarified six existing safe harbors.
Physicians have long complained the law, passed in 1972, is too broad and restrictive. The law forbids knowingly and willfully soliciting, offering, paying or receiving any direct or indirect payment in return for, or to induce, the referral of Medicare or Medicaid patients. Since the law was passed, the inspector general has issued 13 safe harbors, which spell out arrangements that will not be prosecuted.
One of the new safe harbors will allow physicians to invest in single-specialty ambulatory surgery centers, multispecialty surgery centers and hospital/physician-owned surgery centers. Before, only centers wholly owned by
surgeons were protected.
Previous requirements were "inconsistent with some of the other guidance the OIG provided in physician joint ventures," says Bob Homchick, a partner at Davis, Wright, Tremaine, a Seattle law firm.
Also under the new safe harbors:
- Physicians can account for 50% of investors in joint ventures in underserved areas.
- Physicians can receive payments beyond their regular salary for up to three years as an inducement to practice in underserved areas.
- Hospitals in underserved areas can buy and hold a retiring physician's practice until a new physician is recruited.
- Hospitals or others can pay malpractice insurance premiums for obstetrical practitioners in underserved areas.
- Physicians can invest in their own group practices.
- Referrals back to primary-care physicians by a specialist are allowed as the patient's condition improves.
- A "patron" hospital can financially support the operational costs of a cooperative hospital service organization.