HCA Holdings 2011 Annual Report Download - page 24

excess of their fair market value, and (k) rental of space in physician offices, at other than fair market value
terms, by persons or entities to which physicians refer. The OIG has encouraged persons having information
about hospitals who offer the above types of incentives to physicians to report such information to the OIG.
The OIG also issues Special Advisory Bulletins as a means of providing guidance to health care providers.
These bulletins, along with the Special Fraud Alerts, have focused on certain arrangements that could be subject
to heightened scrutiny by government enforcement authorities, including: (a) contractual joint venture
arrangements and other joint venture arrangements between those in a position to refer business, such as
physicians, and those providing items or services for which Medicare or Medicaid pays, and (b) certain
“gainsharing” arrangements, i.e., the practice of giving physicians a share of any reduction in a hospital’s costs
for patient care attributable in part to the physician’s efforts.
In addition to issuing Special Fraud Alerts and Special Advisory Bulletins, the OIG issues compliance
program guidance for certain types of health care providers. The OIG guidance identifies a number of risk areas
under federal fraud and abuse statutes and regulations. These areas of risk include compensation arrangements
with physicians, recruitment arrangements with physicians and joint venture relationships with physicians.
As authorized by Congress, the OIG has published safe harbor regulations that outline categories of
activities deemed protected from prosecution under the Anti-kickback Statute. Currently, there are statutory
exceptions and safe harbors for various activities, including the following: certain investment interests, space
rental, equipment rental, practitioner recruitment, personnel services and management contracts, sale of practice,
referral services, warranties, discounts, employees, group purchasing organizations, waiver of beneficiary
coinsurance and deductible amounts, managed care arrangements, obstetrical malpractice insurance subsidies,
investments in group practices, freestanding surgery centers, ambulance replenishing, and referral agreements for
specialty services.
The fact that conduct or a business arrangement does not fall within a safe harbor, or it is identified in a
Special Fraud Alert, Special Advisory Bulletin or other guidance or as a risk area in the Supplemental
Compliance Guidelines for Hospitals, does not necessarily render the conduct or business arrangement illegal
under the Anti-kickback Statute. However, such conduct and business arrangements may lead to increased
scrutiny by government enforcement authorities.
We have a variety of financial relationships with physicians and others who either refer or influence the
referral of patients to our hospitals and other health care facilities, including employment contracts, leases,
medical director agreements and professional service agreements. We also have similar relationships with
physicians and facilities to which patients are referred from our facilities. In addition, we provide financial
incentives, including minimum revenue guarantees, to recruit physicians into the communities served by our
hospitals. While we endeavor to comply with the applicable safe harbors, certain of our current arrangements,
including joint ventures and financial relationships with physicians and other referral sources and persons and
entities to which we refer patients, do not qualify for safe harbor protection.
Although we believe our arrangements with physicians and other referral sources have been structured to
comply with current law and available interpretations, there can be no assurance regulatory authorities enforcing
these laws will determine these financial arrangements comply with the Anti-kickback Statute or other applicable
laws. An adverse determination could subject us to liabilities under the Social Security Act and other laws,
including criminal penalties, civil monetary penalties and exclusion from participation in Medicare, Medicaid or
other federal health care programs.
Stark Law
The Social Security Act also includes a provision commonly known as the “Stark Law.” The Stark Law
prohibits physicians from referring Medicare and Medicaid patients to entities with which they or any of their
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