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Q&A: Appropriate subjects for OIG advisory opinions

Compliance Monitor, July 8, 2009

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Q: What are appropriate subject matters for an Office of Inspector General (OIG) advisory opinion request?

A: Most OIG advisory opinions requests seek guidance regarding the anti-kickback statute or the anti-kickback “safe harbor” regulations. However, the OIG may also issue advisory opinions regarding the exclusion authorities in section 1128 of the act, the civil monetary penalty authorities in section 1128A of the act, and the criminal penalties in section 1128B of the act. A party seeking an advisory opinion can help the OIG process requests more quickly by identifying the specific subsections of 1128, 1128A, or 1128B of the act about which the party is seeking an opinion and by providing facts relevant to the specific subsections.

• Hypothetical situations
• “Model” arrangements
• General questions of interpretation
• Activities in which the party requesting the advisory opinion is not, and does not plan to be, involved (for example, we cannot issue an opinion to Company A about the business practice of Company B, unless Company A is a current or prospective party to Company B’s business practice)
• The fair market value of goods, services, or property
• Whether an individual is a bona fide employee within the requirements of section 3121(d)(2) of the Internal Revenue Code of 1986
• The application of statutes not contained in sections 1128, 1128A, or 1128B of the act
• The application of section 1877 of the act (also known as the Stark law or physician self-referral law)

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