Lawyers examine new HHS OIG guidance on physician transfers of ASC ownership interests in estate planning contexts

An article published in The National Law Review this week examines new guidance from the Department of Health and Human Services (HHS) Office of Inspector General (OIG) on “physician transfers of ASC ownership interests in estate planning contexts.”

The article, written by Stephen M. Fatum and Thomas N. Hutchinson of business law firm Barnes & Thornburg LLP, focuses on the HHS OIG’s recently released Advisory Opinion No. 26-04, which you can read in full here.

The lawyers state that “transactions arranged as part of bona fide estate planning with supporting documentation and certifications may be deemed by the OIG to be sufficiently low risk of fraud and abuse even though not every element of a safe harbor is satisfied. If properly structured, OIG will not prosecute arrangements where non-physician investor and future physician investors become owners as part of bona fide estate planning, provided that the investor is not a referral source and that the purchases are for fair market value.”

Their key takeaways:

• “Arrangements that are formulated as part of bona fide estate planning may be found sufficiently low risk of fraud and abuse even though they do not satisfy each element of a safe harbor.”
• “The OIG placed considerable weight on certifications and supporting documentation of bona fide estate planning, suggesting that practitioners structuring similar transactions should ensure robust documentary support for such assertions. Wherever doubt exists regarding an arrangement, it is recommended to request formal OIG guidance for clarity and protection.”

Read the full, highly detailed article here.