OIG Approves Employed Physicians' Profit-Based Bonuses

On October 13, 2023, the U.S. Department of Health & Human Services Office of the Inspector General (OIG) issued a favorable opinion (Advisory Opinion 23-07) addressing the question of whether an employed physician can be paid bonus compensation relating to procedures performed by the physician without violating the federal Anti-Kickback Statute (AKS). Under the facts presented, when the physician employees perform outpatient surgical procedures in a given calendar quarter at either of two ambulatory surgery centers (ASCs) operated by the practice employer (requestor), the physician employee would receive a bonus of 30% of the requestor's net profits of the ASC facility fee collection attributable to that physician's procedures performed at the ASC for the quarter. As a fundamental matter, the OIG pointed out that when the relevant ASC procedures are referred by the physician employee and are reimbursable by a federal health care program, the AKS would be implicated.