Obtaining an OIG advisory opinion
With Lisa Smith
Q: I’m a supplier interested in entering into a business venture with another healthcare provider; however, in light of the recent OIG Special Advisory Bulletin on contractual joint ventures, I’m worried that the OIG might attack the arrangement even though we intend to structure it conservatively. What can I do to protect myself against a future OIG enforcement action?
A: The best way to ensure that an existing or proposed arrangement won’t be attacked by the OIG is to obtain a favorable OIG advisory opinion. In seeking an OIG advisory opinion, one or more parties to the arrangement file a written request with the OIG providing detailed information about (1) the parties involved in the arrangement, (2) the arrangement itself (including copies of relevant documents), and (3) the impact of the arrangement on competition, cost to federal healthcare programs, and other factors relevant to a fraud and abuse analysis. The requestor(s) must pay a $250 fee, plus costs incurred by the OIG in processing the request.
After submission, the OIG first makes a determination whether to accept the advisory opinion request. If the request is accepted, the OIG will typically contact the requestor(s) to address specific facts or areas of concern. During this process, the requestor(s) will learn whether the OIG intends to issue a favorable or unfavorable opinion. Obtaining a favorable opinion will protect the requestor(s) from OIG enforcement action so long as all material facts were fully and accurately disclosed, and the arrangement, in practice, comports with the information provided.
Additional information concerning the process for seeking an OIG advisory opinion can be found on the OIG’s Web site at http://oig.hhs.gov/fraud/advisoryopinions.html#3.
Lisa Smith is a healthcare attorney with Brown & Fortunato. Reach her at 830-869-0018.