HHS Advisory Highlights Need For Anti-Kickback Law Update

– Law360

Manatt Health Partner Brian Bewley and Associate Kaitlyn Dunn co-authored an article for Law360 analyzing the U.S. Department of Health and Human Services Office of Inspector General’s (OIG) favorable advisory opinion involving a proposed ambulatory surgery center, or ASC. The authors noted that while many of the factors upon which the OIG relied in blessing the proposed arrangement are not exceptional or novel, at least two aspects of the opinion warrant special attention. “First, given the intent behind and historical commentary surrounding the ASC safe harbor, parties to an ASC joint venture often carefully scrutinize, monitor and implement measures to ensure one or both of the mathematical one-third tests are satisfied, as appropriate,” Bewley and Dunn wrote. “However, this opinion supports that one or more physicians' failure to satisfy the one-third tests — particularly, the one-third practice income test — likely will not be perceived as problematic where such physicians are otherwise using the ASC on a regular basis and only occasionally cross-refer to other specialists who may be invested in or practice at the ASC.”

Law360 subscribers can read the article here.



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