In April 2003, the OIG issued a Special Advisory Bulletin on contractual joint ventures that has caused concern for health care providers in their efforts to find ways to legally contract with one another in a venture-type format. This Special Advisory Bulletin focuses on contractual joint ventures, in which the parties do not necessarily own an entity that is a provider of services but rather contract for the provision of management services, professional services, equipment rental, and the like in lieu of a formal ownership arrangement. This Special Advisory Bulletin focuses on questionable contractual arrangements wherein a health care provider in one line of business expands into a related health care business by contracting with an existing provider of a related item or service to provide the new item or service. Disturbingly, this Special Advisory Bulletin also appears to imply that, even if all of the arrangements of a contractual joint venture are structured to satisfy the OIG’s safe harbor regulations, it still may violate the Anti-Kickback Statute if the opportunity to earn a fee is viewed as illegal remuneration. This is a remarkable development by the OIG and has caused health care attorneys to question the usefulness of the safe harbor regulations if the OIG can look beyond compliance with them.
The OIG’s Special Advisory Bulletin does not mean that radiologists should stop analyzing potential contractual joint ventures with physicians in their attempts to expand their vision and services. For example, it still may be possible to enter into time-share or equipment joint venture arrangements that satisfy the requirements of the law. However, given the Special Advisory Bulletin and the OIG statements made therein, it is more important than ever that any such joint venture must be structured with the advice and assistance of health care counsel who can guide you through the requirements and the landmines.