On August 18, the Office of Inspector General in the Department of Health and Human Services (“OIG”) issued Advisory Opinion 23-05. In it, the OIG expressed concern that a suggested arrangement falling under the purview of surgeries requiring intraoperative neuromonitoring (“IONM”) might be in violation of the Federal anti-kickback statute.
This proposed arrangement involved the formation of a new company, hereafter referred to as “Newco”, formed by the surgeons conducting the aforementioned surgeries. Also involved in the arrangement is a contractual agreement between this new company and the party requesting the OIG’s opinion.
The OIG concluded that the execution of this proposed arrangement could lead to prohibited remuneration under the Federal anti-kickback statute. It was suggested by the OIG that the formation of the Newco and the consecutive contract might generate remuneration influencing the referral of the surgeries.
This opinion reflects an ongoing tough stance against arrangements that could potentially be in violation of the anti-kickback statute. Legal professionals, especially those in the healthcare sector, should keep themselves updated about such advisory opinions as they can significantly impact their client’s business operation structures and contract agreements.
For more in-depth coverage of this advisory opinion from OIG, please follow this link.