On May 25, 2012, the U.S. Department of Health and Human Services, Office of Inspector General (OIG) issued Advisory Opinion 12-06 concerning two proposed arrangements for the provision of anesthesia services at physician-owned ambulatory surgical centers (ASCs, or Centers). The OIG concluded that both proposals could potentially generate prohibited remuneration under the antikickback statute.

The requestor is a physician-owned anesthesia services provider that provides anesthesia services on an exclusive basis at several physician-owned ASCs. The Centers bill and collect fees for the ASC facility services from Medicare and other payors, while the requestor independently bills patients and third-party payors, including Medicare, for the professional anesthesia services provided at the Centers. The requestor claims to be contemplating two potential modifications to its current arrangement with the ASCs in an attempt to compete with other anesthesia groups that are engaging in similar practices and to stem the loss of its business.