The Office of Inspector General (OIG) recently issued an advisory opinion in response to a hospital’s request to determine if their arrangement with attending physicians violated the Federal anti-kickback statute. The arrangement in question allows the hospital’s employed nurse practitioners to perform services traditionally performed by a patient’s attending physician.
After review, the OIG concluded that while the arrangement constitutes remuneration, or the transfer of anything of value, which is prohibited under the Federal anti-kickback statute, the OIG will not impose administrative sanctions due to the minimal risk of fraud and abuse present in this specific circumstance. This is a departure from the OIG’s usual stance in restricting arrangements that involve remuneration between a hospital and its referring physicians.
Services + Tasks Performed by Nurse Practitioners vs. Physicians
The hospital uses its employed nurse practitioners to provide certain care services to patients of participating physicians who are inpatients or in observation status in two designated general care units. The participating physicians are mostly primary care physicians and neither unit is a surgery or a specialty care unit.
The nurse practitioners perform a wide range of tasks, some of which the physician would normally perform. Those tasks include:
- Promptly initiating plans of care through existing protocols
- Implementing applicable care protocols established by the hospital
- Making rounds on assigned units
- Responding to laboratory or imaging studies including arranging prompt follow-up and addressing abnormal results, as needed
- Addressing rapid changes in patient condition
- Addressing concerns of, educating, and supporting patients and their families
- Coaching, educating, and supporting other nurses on the unit
- Overseeing and supporting quality improvement projects
- Discharge planning
Using nurse practitioners to provide these services allows patients to be evaluated quickly and efficiently resulting in more timely diagnosis and treatment. Physicians are still required to round daily on their patients and must maintain accountability for the patient. In addition, the physician cannot bill for the nurse practitioners’ services. The hospital does not provide remuneration for these services to the treating physicians, and it does not separately bill any payor for the nurse practitioners’ services.
Legal Analysis by the OIG
The OIG found minimal risk of fraud and abuse based on the following factors:
- The arrangement is predominantly restricted to primary care physicians and is limited to two general care units (not a surgical or specialty unit). Additionally, the hospital offers nurse practitioner services to all physicians with privileges at the hospital and does not target specific referring physicians. Lastly, the hospital does not contemplate a physician’s volume or value of referrals when offering the arrangement.
- The arrangement has safeguards that lower the risk of fraud and abuse, including that nurse practitioners are in communication with physicians while the physicians still round daily and remain responsible for his/her patient. Additional safeguards include stipulations that the hospital cannot make payments or agreements to induce or reward referrals from the physicians and the physicians cannot bill for the work performed by the nurse practitioners. The OIG noted this proposed arrangement is distinguishable from suspect arrangements where a physician can bill payors, including federal healthcare programs, for services performed by a nurse practitioner at no cost to the physician.
- The arrangement is likely to increase the level of patient care without increasing costs to Federal healthcare programs since the hospital does not bill for the nurse practitioners’ services, even when the services would be separately reimbursable.
This favorable advisory opinion, which may only be relied on by the entity requesting the opinion, is a departure from the OIG’s usual approach in restricting arrangements that involve remuneration from a hospital to its referring physicians. While the advisory opinion addresses enforcement under the Federal anti-kickback statute, it does not speak to compliance with the Stark Law or other statutes and regulations. A hospital looking to implement a similar arrangement should ensure the arrangement complies with the Stark Law, mitigates the potential for fraud and abuse and does not violate any other laws or regulations.
- OIG Advisory Opinion 20-22: https://oig.hhs.gov/documents/root/1045/sfa-telefraud.pdf
- CMS Laws Against Health Care Fraud Fact Sheet: https://www.cms.gov/files/document/overviewfwalawsagainstfactsheet072616pdf
Contact one of our revenue cycle experts today if your organization needs support preparing for or implementing these changes.
These materials are for general informational purposes only. These materials do not, and are not intended to, constitute legal or compliance advice, and you should not act or refrain from acting based on any information provided in these materials. Neither Ensemble Health Partners, nor any of its employees, are your lawyers. Please consult with your own legal counsel or compliance professional regarding specific legal or compliance questions you have.