OIG Issues Advisory Opinion Regarding the Assignment of Billing Rights to a Practice by a Part-Time CRNA

On November 10, 2021, the U.S. Department of Health and Human Services, Office of Inspector General (“OIG”), published an Advisory Opinion (AO# 21-15) regarding a proposal to employ a Certified Registered Nurse Anesthetist (“CRNA”), on a part-time basis, in exchange for the CRNA’s assignment of billing rights to the requestor.

The requestor of the Advisory Opinion is a pain management practice solely owned by a physician. The same physician also owns an 80% stake in an ambulatory surgical center. The physician proposed employing the CRNA to render anesthesia services at both the practice and the center.

The question posed to the OIG was a narrow one: whether part-time employment of a CRNA, in exchange for which the CRNA assigns all billing rights to the employer, is permitted under the Federal Anti-Kickback Statute.

The OIG advised that the proposed arrangement implicates the Federal Anti-Kickback Statute in two ways. As an initial matter, the OIG opined that the requestor’s payment of a salary to the CRNA implicates the Federal Anti-Kickback Statute because the CRNA orders and arranges for items and services related to the provision of anesthesia, some of which may be reimbursable by Federal health care programs. Nevertheless, the flow of remuneration from the requestor to the CRNA could be protected under the Employment Safe Harbor. More importantly, however, the OIG addressed the issue of remuneration flowing from the CRNA to the requestor, in the form of the assignment of billing rights. With respect to the second remuneration stream, the OIG opined that the Employment Safe Harbor does not protect the arrangement because the Safe Harbor only protects renumeration flowing from employer to employee, not employee to employer.

Nevertheless, the OIG set forth that “employment arrangements in which a health care professional who is a bona fide employee reassigns billing rights to an employer in exchange for salary payments are a commonplace practice in the health care industry, explicitly authorized by the laws and regulations governing the Medicare program.” As such, the OIG concluded that it would not impose administrative sanctions pursuant to such an arrangement.

How Frier Levitt Can Help

Nearly every healthcare transaction involves potential federal and state fraud and abuse issues, even an arrangement as potentially straightforward as the employment relationship described above.

Frier Levitt has extensive experience providing compliance advice to health care providers, practices, and management organizations, including as it relates to employment and other financial arrangements. Contact Frier Levitt to discuss any existing regulatory concerns that you may have, or to obtain a regulatory review of a proposed business arrangement.