The OIG recently issued two Advisory Opinions (07-21 and 07-22) reiterating its acceptance of gainsharing arrangements that allow for transparency and include specific safeguards to limit the risk of improper kickbacks. The hospitals involved in the opinions utilized a third-party program administrator to identify cost-saving opportunities available by implementing specific changes in the physicians' operating room practices. The OIG found the two similar arrangements, involving cardiologists and anesthesiologists, respectively, implicated the anti-kickback statute and civil monetary penalty provisions of the Social Security Act, but concluded it would not impose sanctions against the hospitals. Although the OIG determined the arrangements would not meet the personal services safe harbor because the aggregate compensation was not set in advance, it declined to impose sanctions under the anti-kickback statute because it found the arrangements were (1) unlikely to increase referrals on the basis, among other reasons, that savings attributable to federal health program beneficiaries were capped; (2) contained groups which distributed their payment on a per capita basis and were composed entirely of their respective specialty; and (3) allowed for a reasonable compensation considering the increased liability risks for the physicians. Among the eight specific safeguards the OIG considered in its decision not to seek sanctions under its civil monetary authority were (1) the clearly and separately identified specific cost-saving actions; (2) the administrator's use of objective historical data and clinical measures and, where appropriate, the establishment of "floors" below which no savings would accrue to the physicians; (3) the hospital and physicians provided written disclosures of the arrangements to patients; and (4) the arrangements limited the duration and scope of the financial incentives.

The Advisory Opinions are available online. Follow this link to see Advisory Opinion (07-21) and this link to see Advisory Opinion (07-22).