Health care providers, pharmaceutical and device manufacturers and other health industry participants are well aware of the risks presented by the Anti-Kickback Statute (AKS), and they frequently have robust compliance safeguards in place to minimize those risks. But in the context of contract negotiations, providers, suppliers and manufacturers frequently struggle to get physicians to appreciate the risks of arrangements that take into account the value or volume of their referrals.
A recent alert issued by the U.S. Department of Health and Human Services Office of Inspector General (OIG) may be a useful tool for counsel responsible for negotiating contracts with physicians. The June 9 guidance, titled “Fraud Alert: Physician Compensation Arrangements May Result in Significant Liability”, confirms that physicians are squarely in the AKS crosshairs and provides a guide for the types of statements that create liability risk for parties on both sides of a transaction.
