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Tip of the week: Avoid anti-kickback enforcement

Managed Care Weekly Advisor, September 19, 2007

When looking to unload ASC ownership interests, physicians should consider certain dos and don'ts, some of which were illustrated in a June 12 Department of Health and Human Services Office of Inspector General (OIG) advisory opinion. To avoid anti-kickback enforcement or other compliance problems, follow these five tips when selling ownership interests in an ASC:

  1. Seek out sophisticated healthcare counsel. Don't take any chances and assume you understand enough. When you defer involvement of experts, many times you can find yourself in a more difficult situation in which the only way you can proceed is with legal counsel.

  2. Ensure that physicians sell interests in the ASC on a pro rata basis. If not, document the commercially reasonable justification as to why the owners are not doing so.

  3. Focus on fair market value. Also, be sure to get a third party, such as an appraiser, to validate that it's fair market value.

  4. Assemble an A-team of financial advisors and legal advisors.They are necessary to help position the physician owners to maximize the purchase price paid by a corporate investor while minimizing the healthcare regulatory risk associated with such a transaction.

  5. Avoid reshuffling the ownership interests: Especially prior to a sale to a corporate investor so that the ownership becomes more in line with each physician owner's respective utilization of the ASC. This creates concerns under the anti-kickback statute.