Does ED per-diem pay violate anti-kickback laws?

The Office of Inspector General (OIG) offered guidance on the sometimes murky arrangements of hospitals paying per-diem fees for emergency department (ED) coverage that may potentially violate anti-kickback laws.

According to an advisory opinion posted Tuesday, it is possible for hospitals to stay compliant while offering per-diem payments to emergency doctors, although they must still heed the Social Security Act, the civil monetary penalty provision and the federal anti-kickback statute.

In the opinion, OIG pointed to an unnamed nonprofit hospital with a 24/7 ED as an example. Nineteen percent of its patients constitute uncompensated care. It has an one-year agreement in which the hospital pays a per-diem fee to 130 participating specialists to provide unrestricted call coverage.

The anti-kickback statute says it's illegal to induce or reward referrals for services the government reimburses for. Yet, under the Emergency Medical Treatment and Labor Act, hospitals are required to provide either stabilizing treatment or an appropriate transfer for patients that come through the ED.

Such a situation oftentimes put hospitals in the middle, struggling to provide emergency care while staying compliant, especially in times of provider shortages or a lack of volunteering physicians.

"We are aware that hospitals increasingly are compensating physicians for on-call coverage for hospital emergency rooms. We are mindful that legitimate reasons exist for arrangements in many circumstances, including scarcity of certain physicians within a hospital's service area, and access to sufficient and proximate trauma services for local patients," the OIG said. "Simply put, depending on market conditions, it may be difficult for hospitals to sustain necessary on-call physician services without providing compensation for on-call coverage."  

However, OIG also recognized hospital payments could be misused to entice doctors to join or stay on the medical staff or generate more business for the hospital.

The OIG, when referencing the case of the nonprofit hospital, said, "We believe it is possible for parties to structure on-call payment arrangements that are consistent with this standard and, therefore, pose minimal risk under the anti-kickback statute."

To pass muster, remunerations between hospitals and physicians should be fair-market value, physicians must actually provide those emergency services, and the arrangement must not burden the federal health program with additional costs.

For more information:
- see the OIG opinion (.pdf)

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