The HHS Office of Inspector General (OIG) issued Advisory Opinion No. 23-05 (opinion) on Aug. 15 regarding a proposed arrangement in which the "requestor" would assist physicians who perform surgeries using intraoperative neuromonitoring (IONM) with the formation and operation of a turnkey physician-owned entity that would perform IONM services (the proposed arrangement). Specifically, the requestor inquired as to whether the proposed arrangement would warrant sanctions under Section 1128(b)(7) or Section 1128(a)(7) of the Social Security Act (SSA), as they relate to Section 1128B(b), the federal anti-kickback statute (AKS).

The opinion concludes that the proposed arrangement, if undertaken, would generate prohibited remuneration under the AKS, if the requisite intent were present, which would warrant sanctions under both provisions of the SSA, due to the presence of indicia of suspect contractual joint ventures, about which the OIG has longstanding and persistent concerns.