On December 28, 2007, the Department of Health and Human Services Office of Inspector General (OIG) issued two advisory opinions approving gainsharing arrangements. Advisory Opinion 07-21 deals with cardiac surgeons and Advisory Opinion 07-22 with anesthesiologists. Consistent with prior gainsharing approvals

issued by OIG, the OIG found that the arrangements implicated the anti-kickback statute and several money penalty provisions of the Social Security Act (42 USC 1320 a-7b and 1320 a-7a), but concluded it would not impose civil money penalties or administrative sanctions.

As with prior gainsharing approvals, the OIG decision not to impose penalties or sanctions is predicated upon safeguards incorporated into the gainsharing arrangements such as management by a third party administrator, the establishment of a cost savings for below which savings would not be shared to discourage excess cost savings, quality assurance indicators with professional society benchmarks, limitations on volume with volume benchmarks to discourage over utilization, and referral pattern tracking to protect against unusual changes in referral patterns to qualify for gainsharing.

The American Health Lawyers Association has published a summary of OIG Advisory Opinions 07-21 and 07-22, which is available at the link below. That link should provide access to the text of the Advisory Opinions, but those texts are all available below in separate links.

www.medlawblog.com/Practice Groups Advisory Opinion.pdf