The OIG finally weighed in this month on a practice our hospitals engage in, but because of anti-kickback statutes, left them uneasy about violating federal law. At issue is first, hospital inability to fill ER call positions and second, specialist per diem payment to plug the void:
“We are aware that hospitals increasingly are compensating physicians for on-call coverage for hospital emergency rooms. We are mindful that legitimate reasons exist for such arrangements in many circumstances, including scarcity of certain physicians within a hospital’s service area, and access to sufficient and proximate trauma services for local patients. Simply put, depending on market conditions, it may be difficult for hospitals to sustain necessary on-call physician services without providing compensation for on-call coverage.”
The stipend cannot disguise unlawful remuneration, but only pay for legitimate services to fill a medical need. The OIG determined if the hospital in question hewed to criteria set forth in the document, they may proceed with contracts. Legal muddles seem unlikely however, but caveats apply:
“Notwithstanding the legitimate reasons for such arrangements, on-call coverage compensation potentially creates considerable risk that physicians may demand such compensation as a condition of doing business at a hospital, even in cases where neither the services provided, nor any external market factor (e.g., a physician shortage) support such compensation. Similarly, payments by hospitals for on-call coverage could be misused to entice physicians to join or remain on the hospital’s staff or to generate additional business for the hospital.”
The short length of the opinion makes for easy reading; this has relevance if you plan to proceed with paid ER coverage however. The advisory does not provide full protection, as it is only opinion, not law. The source of the advisory makes them indistinguishable though. The OIG usually has the last word.