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Anesthesiologists, ASCs, Referring Physicians, and Alleged Kickbacks Fuel $28 Million Settlement
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| | Something old, something new, something borrowed, something blew up.
Apparently, it was a polygamous marriage made in hell.
That’s what was exposed by the U.S. Department of Justice in early November 2021 when they announced the not quite marital settlement agreement whereby multiple anesthesia providers, ambulatory surgery centers, Tenet-owned United Surgical Partners International, and a host of ASC-owner surgeons agreed to pay a combined $28 million to the government to resolve allegations that they violated the federal Anti-Kickback Statute (the “AKS”). The allegations centered on kickbacks in the form of paying and receiving payments for medications, supplies, equipment and labor, as well as free staffing.
The AKS makes it a crime to pay remuneration to induce a referral of a federal health care program patient.
Many mistakenly believe that the AKS focuses only on cash remuneration, as in “here’s $100 for the case.” They believe that it’s somehow okay for a referral-receiving physician or group to contribute toward, or pay the cost of, an “expense” relating to the referred service. This could take many forms, such as payment for the referring party’s expenses, or providing staff to work in the referring party’s office or facility.
In a classic ASC example, an anesthesia group is asked to provide personnel to help move patients from the OR to post-op in an ASC. Or, the anesthesia group is asked to contribute toward the cost of anesthesia drugs. You get the idea; not everyone does.
As to the “not everyone” who need a reminder, giving a referring physician something like a slightly used 2020 Bentley Continental GT (even in the horrific color combination of white with a linen interior) is still like shoving around $288,000 into her pocket.
The same’s true of giving that referring physician or facility some free drugs or some free equipment or some free services, whether they’re provided directly by the referral recipient or whether the referral recipient pays expenses which are actually those of the referral source.
In the case of the $28 million settlement, the government alleged that between 2005 and 2015, Ambulatory Anesthesia of Atlanta, LLC (f/k/a Ambulatory Anesthesia of Atlanta, PC) and Northside Anesthesiology Consultants, LLC made payments for drugs, supplies, equipment and labor, and provided free staffing to a number of Georgia ASCs in order to induce the centers to select the anesthesia groups to be their exclusive anesthesia providers in violation of the AKS, which resultingly caused the submission of false claims in violation of the False Claims Act.
The settlement was entered into by the following individuals and entities:
• Ambulatory Anesthesia of Atlanta, LLC
• Arif A. Aziz, M.D.
• Jean Calhoun
• Jay A. Cherner, M.D.
• David Finkelman, M.D.
• Alan M. Fixelle, M.D.
• DCA Diagnostics, L.L.C.
• The Endoscopy Center, LLC (Savannah)
• Endoscopy Consultants, LLC
• Gastrointestinal Specialists of Georgia, P.C.
• Georgia Endoscopy Center, LLC
• G.I. Diagnostics Endoscopy Center, L.L.C.
• Eugene H. Hirsh, M.D.
• Steven McIntosh, M.D.
• North Fulton Medical Center, Inc.
• Northside Anesthesiology Consultants, LLC
• Northwest Georgia Orthopaedic Surgery Center, LLC
• Stanford Plavin, M.D.
• M. Thomas Riddick, M.D.
• Bruce A. Salzberg, M.D.
• Gary S. Simon, M.D.
• David N. Socoloff, D.O.
• United Surgical Partners International, Inc.
• Wellbrook Endoscopy Center, P.C.
Note that as is often the case in connection with these types of allegations, the settled matter began with a whistleblower lawsuit. The case is United States ex rel. Capitol Anesthesiology, P.C., et al. v. Stanford Plavin, M.D., et al., No. 1:11-cv-2513-SCJ. The nominal plaintiffs, known under the FCA as “relators”, are Kathleen Hartney-Velazco, M.D., Jan Kersey and Capitol Anesthesiology, P.C. According to the DOJ, over $4.7 million of the settlement funds went to the realtors.
Remember, that in cases of this sort, which are civil, not criminal, settlements resolve allegations, do not involve any admission of culpability or guilt, and there has been no determination of liability.
In the broader context, beyond the facts of the recent settlement, penalties for violation of the AKS include jail time, criminal fines, civil monetary penalties and debarment from participation in federally funded healthcare programs.
What passes as common knowledge in this area does not come close to comprehending the complexity of AKS compliance.
In my experience, the other party to one of these deals often claims, rightly or wrongly, that the deal has been “approved by our healthcare counsel.” Maybe they’re lying. Maybe they’re telling the truth and their lawyers are clueless; the lawyers certainly won’t go to jail for their client.
Be very careful when entering into any arrangement with a referral source or a recipient of your referrals. Get experienced healthcare counsel involved at the earliest point. |
| | How to Deploy the Secret Sauce of Opportunistic Strategy - Webinar On Demand
They say that COVID-19 has changed the world, creating the "new normal." Many of your colleagues and many hospital administrators are running scared.
Others, leaders like you, know that crisis means opportunity.
Let me provide you with the strategic tools and insights that you need in order to seize opportunities, whether they’re in the context of your current business relationships, the expansion of your business activities, or the creation of new ventures.
You will learn:
• Defense as a defective default: It’s necessary, but not sufficient.
• Exploiting weakness: Drop the guilt and identify opportunity.
• Flat line negotiation is fatal: Understand its myths and limitations.
• Negotiation reality: Learn to identify and deploy on multiple planes to affect the outcome.
• Maneuver: Harness the power of maneuver, both in overall strategy and in specific negotiation strategy.
Others see a crisis and freeze in fear. Learn how to see the opportunities and obtain the tools to increase your odds of obtaining them.
The price to attend is $479. The cost of not attending is astronomical.
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| | | Newsflash: Business Life In the Time of Coronavirus - The Way Out
The coronavsaaairus crisis, especially as it has become politicized, raises a number of business issues and, quite frankly, business opportunities in regard to future disruptive events.
Check out our mini-series, with actionable business lessons for medical group leaders.
Sooner or later this crisis will end. You can’t allow yourself to be too busy, too occupied,
too concerned with current events, to devote time and effort to strategizing for your future.
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What can your group do to construct, manage and exploit the power of first impressions? |
| | | | All Things Personal
A couple of weeks ago, I took a short drive from my house to the local post office. I needed some stamps.
As soon as I opened the door, I knew I was in luck. Well, at least at that point. There was only one person in line in front of me and I was quickly in front of the clerk.
I thought I'd make the most of the trip, so I asked for three 100 stamp rolls.
The clerk checked his drawer, walked over to ask the other clerk what she had, and returned with two rolls. “This is all we have.”
How could that be possible? “This is the post office. How could it be that you don't have any more rolls of stamps?”
That's when the interesting answer came. “Well, we have more rolls of stamps, but they're in the back and my supervisor isn't here. We're not allowed to take them up front without the supervisor’s permission."
What do you have in your medical practice or facility that’s of value to your customers, but which you can’t or don’t provide because of dumb ass rules?
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| | Help Us Help You With Helpful Content
What tailored content would you most like to see during this time? How can we focus on solutions to your most pressing
strategic concerns?
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| | Podcast Compilation Greatest Hits - Strategy Edition 1.0
We've curated our most popular podcasts on strategy into our first compilation album.
Sit back, enjoy, and think about your future.
Listen here. |
| | | | | | We all hear, and most of us say, that the pace of change in healthcare is quickening. That means that the pace of required decision-making is increasing, too. Unless, that is, you want to take the “default” route. That’s the one is which you let someone else make the decisions that impact you; you’re just along for the ride. Of course, playing a bit part in scripting your own future isn’t the smart route to stardom. But despite your own best intentions, perhaps it’s your medical group’s governance structure that’s holding you back. In fact, it’s very likely that the problem is systemic. The Medical Group Governance Matrix introduces a simple four-quadrant diagnostic tool to help you find out. It then shows you how to use that tool to build your better, more profitable future. Get your free copy here.
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| | | Whenever you're ready, here are 4 ways I can help you and your business:
1. Download a copy of The Success Prescription. My book, The Success Prescription provides you with a framework for thinking about your success. Download a copy of The Success Prescription here.
2. Be a guest on “Wisdom. Applied. Podcast.” Although most of my podcasts involve me addressing an important point for your success, I’m always looking for guests who’d like to be interviewed about their personal and professional achievements and the lessons learned. Email me if you’re interested in participating.
3. Book me to speak to your group or organization. I’ve spoken at dozens of medical group, healthcare organization, university-sponsored, and private events on many topics such as The Impending Death of Hospitals, the strategic use of OIG Advisory Opinions, medical group governance, and succeeding at negotiations. For more information about a custom presentation for you, drop us a line.
4. If You’re Not Yet a Client, Engage Me to Represent You. If you’re interested in increasing your profit and managing your risk of loss, email me to connect directly. |
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