Here are three takeaways:
1. In ASC-anesthesia services arrangements, the transfer of anything of value from the anesthesia provider to the ASC or ASC owners must be carefully reviewed “to determine whether it unduly influences the selection of the anesthesia provider’s services,” according to Nelson Hardiman.
2. ASCs provide anesthesia services to patients through three models:
- Fee-for-service model. Anesthesia providers do their own billing and collection. There is no financial connection between the anesthesia provider and ASC, minimizing compliance risks.
- Employment/engagement model. The ASC pays the anesthesia provider a fixed rate for services, and the ASC manages billing and collections for the anesthesia service. With the ASC taking the collection risk on denied claims and potentially a margin on anesthesia services, it’s important for both entities to fulfill personal services safe harbor requirements of the federal anti-kickback statute. This arrangement is riskier than the fee-for-service model and necessitates careful attention to drafting.
- Company model. The ASC forms a separate entity that hires and retains an anesthesia services provider. The anesthesia company bills and collects service fees, pays anesthesiologists and pays any profits to the ASC. The ASC bills for both facility fees and anesthesia services, creating serious compliance concerns under the anti-kickback statute. This model is high-risk and compliance assessment is crucial.
3. An ASC can provide billing and collection services for an anesthesia provider, but it must do so at fair market value. If an ASC retains excessive revenue or doesn’t provide a substantial service to the anesthesia provider, the entities risk running afoul of anti-kickback statutes.