Two new advisory opinions that HHS’ inspector general’s office published last month add to an increasingly clear road map of the right and wrong ways that hospitals and physicians can share cost savings without getting into trouble for kickbacks or cut-rate care. But providers that start down that road without explicit approval still do so at their own peril, attorneys say.
One of the new opinions is the first to address anesthesiologists and the other involves a group of cardiac surgeons who, along with cardiologists, are the most frequent partners in the arrangements, known as gain-sharing. The government has been dubious of gain-sharing because the deals potentially create financial incentives for doctors to make thrifty decisions that are bad for patients, thus invoking the inspector general’s civil monetary penalty authority; and the purported savings might be a sop to physicians for referrals, violating the criminal anti-kickback statute.
But since 2001, the inspector general’s office has blessed 10 plans that are tied to specific measures supported by objective historical and clinical data, and that provide adequate safeguards controlling how the money flows.
“I can’t imagine this becoming an enforcement priority for OIG after issuing all these opinions, but there’s some risk the hospitals are taking in going forward without an opinion,” says health lawyer William Mathias, a principal in the Washington office of Ober, Kaler, Grimes & Shriver. The opinions might offer hints to everyone in the industry but absolve only the parties who asked for them. The inspector general’s staff is “issuing a get-out-of-jail-free card for a criminal statute,” Mathias says. “They want to issue their opinions as narrowly as they can.”
According to the new opinion dealing with an unnamed hospital and group of anesthesiologists, one cost-saving tactic calls for the anesthesiologists to use a less-expensive type of catheter when clinically appropriate during cardiac surgeries, which data indicate would be 90% of them. The plan prohibits the physicians from being rewarded for using the cheaper catheters in a greater percentage of cases.
One point further clarifies what’s mostly well-traveled territory in the new opinions, Mathias says. The anesthesiologists limit their work to other physicians’ procedures, which the inspector general’s office notes in the opinion would make it unlikely they could generate the kind of referrals to the hospital that would earn kickbacks.
In another subtle deviation from previous opinions, the parties involved went ahead with the arrangements before securing the government’s blessing. “It is the first time that the programs were existing—they’ve always been proposed,” says Catherine Martin, a health lawyer with Alston & Bird in Washington. The parties held off distributing the proceeds pending an answer from the inspector general’s office, but the opinion notes that withholding payment won’t absolve anyone of liability if an arrangement is found to be flawed.
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