Awaiting Further Guidance from CMS, Hospitals Seeking to Craft On-Call Physician Compensation Policies May Look to OIG Advisory Opinion for Guidance

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In a recent opinion issued by the Health and Human Services (HHS) Office of Inspector General (OIG) on May 14, 2009, Advisory Opinion No. 09-05 [.pdf], the OIG concluded that there are circumstances under which a hospital may compensate physicians for taking on-call coverage in the emergency department without running afoul of the federal Anti-Kickback statute. The OIG’s advisory opinion enters a space that has not yet been filled with guidance from the Centers for Medicare & Medicaid Services (CMS). Although OIG Advisory Opinions are written to apply only to the party that requested the opinion, hospitals should be aware of this recent development as it relates to requirements under Emergency Medical Treatment and Labor Act (EMTALA), 42 U.S.C. §1395dd, and its regulations, at 42 C.F.R. 489.24.

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