HHS' Office of the Inspector General has confirmed broad protection of employee safe harbor under anti-kickback laws in a recent ruling involving physician ownership of an ASC, according to an Oct. 17 article in JDSupra written by law firm Sheppard Mullin.
In the opinion, the OIG considered a proposed bonus compensation for physician employees of a physician practice, which operates two ASCs. Under the proposed methodology, physicians who performed procedures at the ASCs would receive 30% of the net profits from the ASC facility fee.
The OIG ruled that although the methodology would violate anti-kickback law, it would be protected under the statutory exception and regulatory safe harbor for employees, given that the physician recipients would need to be employees of the practice. The OIG specified that similar arrangements involving contracted physicians or nonemployees would raise fraud and abuse concerns.
The opinion affirms "broad protection available for compensation to employed physicians under the bona fide employee exception and safe harbor," according to the article.