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Does My On-Call Compensation Arrangement Violate The Anti-Kickback Statute?

The Anti-Kickback statute has a wide-ranging reach and is relevant to a large variety of financial interactions between physicians, physicians and hospitals and health care centers, physicians and drug/medical device manufacturers and retailers, and myriad of other interactions within the health care world.

One of the areas affected by the Anti-Kickback Statute is the area of per diem fee arrangements with a physician for providing on-call services. Such arrangements must be structured carefully in order to avoid violating the Statute; violation may give rise to criminal charges, as well as the imposition of civil penalties or administrative sanctions. Whether or not a particular arrangement violated the Statute is always a complex issue and is determined based on the particulars of the individual arrangement; however the tendency for OIG is to consider such arrangements suspicious.

On the other hand, it can be difficult for hospitals or practices to ensure on-call coverage without entering into a compensation arrangement. In one case, a hospital that paid per diem fees to doctors on unrestricted call in the emergency department. There, OIG found that there was a low risk of fraud. Determining factors included the fact that the payments were within fair market value, were calculated on an annual basis, were paid to all participating doctors and not based on the number of patients referred, the physicians provided necessary services, the arrangement was available to all physicians who were required to take unrestricted call, and was structured so that the hospital absorbed all the related costs. This determination was particular to this case and relied on very specific facts. Rather than issuing an all-encompassing rule, the OIG evaluates each case as to the risk of fraud and abuse.

Since the consequences of non-compliance are typically severe, and the issues are complex and fact-intensive, providers should review and evaluate any existing or future on-call compensation arrangements and ensure that they comply with applicable fraud and abuse requirements.

Our experienced health care attorneys are available to guide you through this complex process. Call our experienced NYC health care attorneys at  (212) 577-6677 to schedule an immediate consultation.