New OIG Guidance for On-Call Payments

OIG Opinion 09-05, approving a hospital's proposal to compensate physicians for on-call services performed on behalf of the hospital's uninsured patients, may have broad implications for on-call coverage.

The 400-bed nonprofit general hospital is the sole provider of acute care inpatient hospital services in the county.

Under the proposed arrangement, the hospital would pay physicians on a per-encounter basis for the following services provided during on-call periods to indigent patients:

• $100 flat fee for emergency consultations on an eligible patient presenting
• $300 per admission for care of eligible patients admitted as inpatients from the ED
• $350 flat fee for the primary surgeon of record for the surgical procedure or procedures performed on an eligible patient admitted from the ED
• $150 flat fee for the physician performing the endoscopic procedure or procedures performed on an eligible patient admitted from the ED

The OIG noted that although there is "substantial risk that improperly structured payments for on-call coverage could be used to disguise unlawful remuneration" under the anti-kickback statute, the proposed arrangement had adequate safeguards.

Those safeguards can provide guidance to physicians, says Todd A. Rodriguez, partner and cochair of the Health Law Practice Group at Fox Rothschild, LLP, in Exton, PA. Among them:

• The hospital certified that the payment amounts are within the range of fair market value for services rendered, without regard to referrals or other business generated between the parties
• The hospital had a legitimate rationale for revising its on-call coverage policy—namely, that it did not have adequate call coverage
• The proposed arrangement will be offered uniformly to all physicians and will impose tangible responsibilities on them
• The proposed arrangement would appear to create an equitable mechanism for the hospital to compensate physicians who actually provide the care that the hospital is required to furnish

"While the advisory opinion does not contain any surprises, it provides a very useful analysis at a time when on-call compensation arrangements are proliferating. Physicians who have on-call compensation arrangements or who are considering entering into one are well-advised to review their arrangements in light of the OIG's analysis," Rodriguez writes in his Physician Law blog.