The Office of Inspector General ("OIG") issued Advisory Opinion No. 08-22 on December 8, 2008 regarding a proposed arrangement by a non-profit organization to hire two physicians on a part-time basis to perform endoscopies. The part-time physicians would perform the endoscopies at the offices of the non-profit organization, which was formed to employ physicians.

Each of the physicians also have a separate medical practice, at another location, through which each physician will continue to provide and bill for professional medical services furnished to patients outside of the proposed part-time employment relationship. The non-profit organization certified that the physician part-time employees will be its bona fide 3employees within the meaning of 26 U.S.C. § 3121(d)(2) and that it would pay the physicians a salary based on the fair market value of the professional services that would be personally provided by each physician while employed by the organization.

The OIG noted that whether an employee is a bona fide employee for purposes of the employee exception to the federal anti-kickback statute is a matter outside of the scope of the advisory opinion process. However, the OIG would rely upon the non-profit organization’s certification that the physician employees are bona fide employees of the organization within the definition of this term set forth in 26 U.S.C. § 3121(d)(2) and the Internal Revenue Service interpretations of this statute. The non-profit organization also certified that the compensation that the physicians would receive will be for professional services they personally perform.

Based on these certifications, the OIG concluded that the salaries paid to these physicians would not constitute prohibited remuneration under the federal anti-kickback statute and that the proposed part-time employment of these physicians satisfied the criteria of the statutory employment safe harbor to the federal anti-kickback statute in section 1128B(3)(B) and 42 C.F.R. § 1001.952(i).

A copy of this advisory opinion is posted on the OIG’s web site at: