Home Health & Hospice Week

You've most likely heard about the OIG's "advisory opinions," but in addition to knowing how the OIG rules on other provider's situations, it's a good idea to know when this process could help you -- and what the rules are.

If you do request an advisory opinion, the attorney "should at the very least review the request to determine that it includes the pertinent facts about the arrangement, Rogers says. "A complete description about the arrangement is necessary in order for the OIG to provide the advisory opinion."

Request before implementing: If you think you would benefit from an advisory opinion, file your request before you begin performing the questionable action. "The advisory opinion process is designed to yield reviews of proposed arrangements,"points out attorney David C. Harlow with The Harlow Group in Newton, Mass.

Providers often worry about whether the OIG could use the information in an advisory opinion request to impose penalties on the practice.

Reality: "If your advisory opinion concerns a proposed arrangement and the OIG issues an unfavorable opinion, the OIG generally assumes that the requester will not go through with the proposed arrangement," says attorney Mark Wachlin, a former OIG staffer who now practices with Dilworth Paxson in Philadelphia.

If your advisory opinion involves an existing arrangement and the opinion will be unfavorable, the OIG will normally call and inform you. "The requester will then usually withdraw the advisory opinion request," Wachlin says.

"The regulations governing the advisory opinion process expressly state that in the event of withdrawal, the 'OIG reserves the right to retain any request for an advisory opinion, documents and other information submitted to it under these procedures,and to use them for any government purpose,'"Wachlin says. "In the final rule published in the Federal Register, 63 FR 38311, several commenters asked whether the 'any governmental purpose' language means that the OIG can use information submitted with requests as a basis for investigation."

The OIG responded as follows: "Our primary purpose under these regulations is to gather and assess information in order to render informed advisory opinions. However, the anti-kickback statute is a criminal statute, and therefore review of arrangements that potentially implicate the statute requires heightened scrutiny. As a law enforcement agency,the OIG cannot ignore information lawfully obtained to further legitimate governmental purposes."

Outcome: If the OIG issued an unfavorable opinion regarding an existing practice, it could pursue the requester or refer the matter to the Department of Justice, Wachlin says. "It is not,however, customary for this to occur. Indeed, in my three-plus years at the OIG, I do not ever recall such a situation occurring."