May 21, 2012 — Question: An independent ambulatory surgery center (ASC) is open just a few days a week. It is staffed by physicians from the provider group that owns the center.

In an effort to increase revenue, the ASC is considering a deal with an outside, small provider group that seeks to use the ASC on the days when it is usually closed. As part of the agreement, the outside group would be credentialed by the ASC, allowing it to use the ASC’s operating rooms and support staff, without charge.

The outside group would bill its own professional fees, while the ASC would bill for use of the facility. In today’s regulatory environment, should the owners of the ASC be concerned that allowing the outside group to use the ASC for free would constitute a kickback?

Can an ASC allow a provider to come in, use the operating rooms and bill their own fees, without any type of agreement?

Answer: While it may be best to draw up a written agreement setting forth the terms and conditions for using the center’s operating rooms — including for example credentialing the physicians who will use the facility — as long as the outside providers aren’t receiving a cut of the facility fees, then the federal Anti-Kickback Statute (AKS) should not apply. Because outside physician groups are only performing surgery at the ASC, and billing for their professional services, then the arrangement should be no different than if the doctors were performing surgery at a hospital with each party billing for the services they provide.

But, what if the independent physician group wanted to rent the ASC for blocks of time during which they could perform their surgical procedures?  That is also possible provided that the parties enter into a rental agreement meeting both safe harbor and Stark regulatory requirements. The physician group may then be entitled to both a facility fee and their professional fee, subject to applicable state licensure laws and the requirements of Medicare and third-party payers.

Lee Lasris, partner, Florida Health Law Center