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FEATURE How to Respond to the Anesthesia Services OIG Advisory Opinion

In June 2012, the US Department of Health and Human Services (HHS) Office of the Inspector General (OIG) posted an advisory opinion on an- esthesia services arrangements for physician-owned ASCs. This advisory opinion addressed models that en- abled ASC physician users to share in the profits from anesthesia, says Jerry Sokol, partner in the law firm of Mc- Dermott Will & Emery and co-chair of the firm’s national health transac- tions group.

“Anesthesia models where surgeons do not participate economically in the anesthesia are not impacted by this advisory opinion,” Sokol says. “But, as a result of the OIG advisory opinion, there’s been a real chilling effect on anesthesia joint-venture ar- rangement models that enabled the ASC utilizers to share in the anesthe- sia profits.”

Any arrangements in which the physi- cian ASC users are participating in the anesthesia revenue need to be care- fully analyzed in light of this guidance, he says.

der and be sensitive to them. With the current market, anesthesia is getting a lot of pressure to reduce staffing costs and explore other ways to keep costs down. So, as you’re asking them to cover rooms that are underutilized, you need to work with them, include them in the marketing plan to fill that room and identify their responsibility to participate in that marketing plan and what they can do to grow the vol- ume. It is about keeping lines of com- munication open. This needs to be a very close, synergistic relationship.” One mechanism for anesthesia

engagement that Wherry says is of- ten overlooked is to develop financial incentives for the anesthesia group. “Sometimes anesthesia groups are allowed to buy in to the ASC. This


US Department of Health and Human Services headquarters in the Hubert H. Humphrey Building in Washington, DC.

“The concern is whether arrangements in which the utilizing physicians are shar- ing in anesthesia revenue could be con- sidered ‘kickbacks’ from the participating anesthesiologists who, absent the ar- rangement, would be retaining all of the anesthesia revenue,” Sokol says.

“There are some arrangements that may enable ASC physicians to par-

ticipate in the anesthesia revenue, which are distinguishable from the arrangements contemplated in the advisory opinion,” he contin- ues. “However, anyone involved in or considering these arrangements must ensure a proper analysis to de- termine possible risk of violating the Anti-Kickback Statute.”

If an ASC is performing well financially, an

incentive program that rewards the anesthesia providers for their effort is a way for the group to be included and feel like a part of the team.”

— Thomas M. Wherry, MD Total Anesthesia Solutions

has its pros and cons, and most ASCs don’t have anesthesiologists as own- ers, but that doesn’t mean anesthesia can’t participate in a positive bottom line. ASCs can easily create an incen- tive program based upon meeting or exceeding certain expectations that

would be measurable, such as patient and surgeon satisfaction; providing regular in-servicing for the staff, such as malignant hyperthermia or crash cart drills; participation in quality assurance committees; chart comple- tion; and cost-savings efforts. “If an ASC is performing well fi-

nancially, an incentive program that rewards the anesthesia providers for their effort is a way for the group to be included and feel like a part of the team,” Wherry continues. “An- esthesiologists are such a key ele- ment to an ASC’s performance, and I highly recommend centers consider something like a creative incentive program as a way to engage and get more out of them.”

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