Fee Splitting/Kickbacks

Fee-Splitting by Hospitals

Introduction -- The 1998 OIG Compliance Program regarding fraud and abuse for hospitals represents a valuable tool for employed emergency physicians or groups that hold a hospital contract to protect their interests. The below excerpts clearly state that the hospital can not take a portion (split) of the emergency physician fee beyond fair market value for what is returned to the physician (office space, etc). AAEM members will note that such an OIG stance serves as a strong basis to fight similar abuses by contract groups. There is no sound legal basis for the contract holders doing what the OIG is forbidding hospitals to do.

Federal Register: February 23, 1998 (Volume 63, Number 35)

Notices
Page 8987-8998
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr23fe98-111

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of Inspector General
Publication of the OIG Compliance Program Guidance for Hospitals
agency: Office of Inspector General (OIG), HHS.
action: Notice.

for further information contact: Stephen Davis, Office of Counsel to the Inspector General, (202) 619-0070.

Compliance Program Guidance for Hospitals

(I) Introduction -- The Office of Inspector General (OIG) of the Department of Health and Human Services (HHS) continues in its efforts to promote voluntarily developed and implemented compliance programs for the health care industry. The following compliance program guidance is intended to assist hospitals and their agents and subproviders (referred to collectively in this document as "hospitals"') develop effective internal controls that promote adherence to applicable Federal and State law, and the program requirements of Federal, State and private health plans. The adoption and implementation of voluntary compliance programs significantly advance the prevention of fraud, abuse and waste in these health care plans while at the same time furthering the fundamental mission of all hospitals, which is to provide quality care to patients. Within this document, the OIG intends to provide first, its general views on the value and fundamental principles of hospital compliance programs, and, second, specific elements that each hospital should consider when developing and implementing an effective compliance program. While this document presents basic procedural and structural guidance for designing a compliance program, it is not in itself a compliance program. Rather, it is a set of guidelines for a hospital interested in implementing a compliance program to consider. The recommendations and guidelines provided in this document must be considered depending upon their applicability to each particular hospital.

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(II) Compliance Program Elements --

(2) Risk Areas -- The OIG believes that a hospital's written policies and procedures should take into consideration the regulatory exposure for each function or department of the hospital. Consequently, we recommend that the individual policies and procedures be coordinated with the appropriate training and educational programs with an emphasis on areas of special concern that have been identified by the OIG through its investigative and audit functions[11]. Some of the special areas of OIG concern include[12].

Financial arrangements between hospitals and hospital-based physicians -- Another OIG concern with respect to the anti-kickback statute is hospital financial arrangements with hospital-based physicians that compensate physicians for less than the fair market value of services they provide to hospitals or require physicians to pay more than market value for services provided by the hospital. See OIG Management Advisory Report: "Financial Arrangements Between Hospitals and Hospital-Based Physicians." OEI-09-89-0030, October 1991. Examples of such arrangements that may violate the anti-kickback statute are token or no payment for Part A supervision and management services; requirements to donate equipment to hospitals; and excessive charges for billing services.

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(5) Anti-Kickback and Self-Referral Concerns -- The hospital should have policies and procedures in place with respect to compliance with Federal and State anti-kickback statutes, as well as the Stark physician self-referral law[31]. Such policies should provide that:

Towards this end, the hospital's in-house counsel or compliance officer should, inter alia, obtain copies of all OIG regulations, special fraud alerts and advisory opinions concerning the anti-kickback statute, Civil Monetary Penalties Law (CMPL) and Stark physician self-referral law (the fraud alerts and anti-kickback or CMPL advisory opinions are published on HHS OIG's home page on the Internet), and ensure that the hospital's policies reflect the guidance provided by the OIG.

All of the hospital's contracts and arrangements with referral sources comply with all applicable statutes and regulations;

The hospital does not submit or cause to be submitted to the Federal health care programs claims for patients who were referred to the hospital pursuant to contracts and financial arrangements that were designed to induce such referrals in violation of the anti-kickback statute, Stark physician self-referral law or similar Federal or State statute or regulation; and

The hospital does not enter into financial arrangements with hospital-based physicians that are designed to provide inappropriate remuneration to the hospital in return for the physician's ability to provide services to Federal health care program beneficiaries at that hospital.