The HHS Office of Inspector General (OIG) issued Advisory Opinion No. 23-07 (opinion) on Oct. 10 regarding a “requestor’s” proposal to pay bonuses to its employed physicians based on net profits derived from certain procedures performed by the physicians (the proposed arrangement). Specifically, the requestor inquired as to whether the proposed arrangement would warrant sanctions under Section 1128(b)(7) or Section 1128A(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 not generate prohibited remuneration under the AKS. Accordingly, the OIG would not impose administrative sanctions on the requestor in connection with the proposed arrangement under Sections 1128A(a)(7) or 1128(b)(7) or the SSA as they relate to the AKS.

Factual Background and Proposed Arrangement

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