[Federal Register Volume 65, Number 37 (Thursday, February 24, 2000)]
[Notices]
[Pages 9274-9277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4212]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of Inspector General


Publication of OIG Special Fraud Alert on Rental of Space in 
Physician Offices by Persons or Entities to Which Physicians Refer

AGENCY: Office of Inspector General (OIG), HHS.

ACTION: Notice.

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[[Page 9275]]

SUMMARY: This Federal Register notice sets forth a recently issued OIG 
Special Fraud Alert concerning rental of space in physicians' offices 
by persons or entities that provide health care items or services to 
patients that are referred, either directly or indirectly, by the 
physician-landlord. For the most part, OIG Special Fraud Alerts address 
national trends in health care fraud, including potential violations of 
the anti-kickback statute for Federal health care programs. This 
Special Fraud Alert specifically highlights questionable or suspect 
rental arrangements for space in physicians' and other practitioners' 
offices, and how the space rental safe harbor can protect legitimate 
arrangements.

FOR FURTHER INFORMATION CONTACT: Julie Kass, Office of Counsel to the 
Inspector General, (202) 619-0335.

SUPPLEMENTARY INFORMATION:

I. Background

    The Office of Inspector General (OIG) issues Special Fraud Alerts 
based on information it obtains concerning particular fraudulent or 
abusive practices within the health care industry. Special Fraud Alerts 
are intended for widespread dissemination to the health care provider 
community, as well as those charged with administering the Medicare and 
Medicaid programs. To date, the OIG has published in the Federal 
Register the texts of ten previously-issued Special Fraud Alerts. \1\ 
It is the OIG's intention to publish future Special Fraud Alerts in 
this same manner as a regular part of our dissemination of such 
information. \2\
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    \1\ See December 19, 1994 (59 FR 65372); August 10, 1995 (60 FR 
40847); June 17, 1996 (61 FR 30623); April 24, 1998 (63 FR 20415); 
and January 12, 1999 (64 FR 1813).
    \2\ All OIG Special Fraud Alerts are also available on the 
internet at the OIG web site at http://www.dhhs.gov/progorg/oig/frdalrt/index.htm.
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    In an effort to promote voluntary compliance in the health care 
industry and assist providers in their compliance efforts, the OIG has 
developed a Special Fraud Alert, set forth below, that addresses 
potential problem areas with regard to the rental of space in 
physicians' offices by persons or entities to which physicians refer 
patients. Among other things, this Special Fraud Alert addresses 
suspect rental arrangements for space in physicians' offices with 
regard to: (1) the appropriateness of rental agreements; (2) the rental 
amounts; and (3) time and space considerations. A reprint of this 
Special Fraud Alert follows.

II. Special Fraud Alert: Rental of Space in Physician Offices by 
Persons or Entities to Which Physicians Refer (February 2000)

    The Office of Inspector General (OIG) was established at the 
Department of Health and Human Services by Congress in 1976 to identify 
and eliminate fraud, abuse and waste in the Department's programs and 
to promote efficiency and economy in departmental operations. The OIG 
carries out this mission through a nationwide program of audits, 
investigations and inspections.
    To reduce fraud and abuse in the Federal health care programs, 
including Medicare and Medicaid, the OIG actively investigates 
fraudulent schemes that are used to obtain money from these programs 
and, when appropriate, issues Special Fraud Alerts that identify 
practices in the health care industry that are particularly vulnerable 
to abuse.
    This Special Fraud Alert focuses on the rental of space in 
physicians' offices by persons or entities that provide health care 
items or services (suppliers) \3\ to patients that are referred either 
directly or indirectly by their physician-landlords. In this Special 
Fraud Alert, we describe some of the potentially illegal practices the 
OIG has identified in such rental relationships.
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    \3\ Persons or entities may be either suppliers or providers. 
For purposes of this Special Fraud Alert, we will refer to such 
persons as suppliers.
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Questionable Rental Arrangements for Space in Physician Offices

    A number of suppliers that provide health care items or services 
rent space in the offices of physicians or other practitioners. 
Typically, most of the items or services provided in the rented space 
are for patients, referred or sent, either directly or indirectly, to 
the supplier by the physician-landlord. In particular, we are aware of 
rental arrangements between physician-landlords and:
     Comprehensive outpatient rehabilitation facilities (CORFs) 
that provide physical and occupational therapy and speech-language 
pathology services in physicians' and other practitioners' offices;
     Mobile diagnostic equipment suppliers that perform 
diagnostic related tests in physicians' offices; and
     Suppliers of durable medical equipment, prosthetics, 
orthotics and supplies (DMEPOS) that set up ``consignment closets'' for 
their supplies in physicians' offices.
    The OIG is concerned that in such arrangements, the rental payments 
may be disguised kickbacks to the physician-landlords to induce 
referrals. We have received numerous credible reports that in many 
cases, suppliers, whose businesses depend on physicians' referrals, 
offer and pay ``rents''--either voluntarily or in response to 
physicians'' requests--that are either unnecessary or in excess of the 
fair market value for the space to access the physicians' potential 
referrals.

The Anti-Kickback Law Prohibits Any Payments To Induce Referrals

    Kickbacks can distort medical decision-making, cause 
overutilization, increase costs and result in unfair competition by 
freezing out competitors who are unwilling to pay kickbacks. Kickbacks 
can also adversely affect the quality of patient care by encouraging 
physicians to order services or recommend supplies based on profit 
rather than the patients' best medical interests.
    Section 1128B(b) of the Social Security Act (the Act) prohibits 
knowingly and willfully soliciting, receiving, offering or paying 
anything of value to induce referrals of items or services payable by a 
Federal health care program. Both parties to an impermissible kickback 
transaction are liable. Violation of the statute constitutes a felony 
punishable by a maximum fine of $25,000, imprisonment up to five years, 
or both. The OIG may also initiate administrative proceedings to 
exclude persons from Federal health care programs or to impose civil 
money penalties for fraud, kickbacks and other prohibited activities 
under sections 1128(b)(7) and 1128A(a)(7) of the Act.\4\
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    \4\ Some of the arrangements identified as suspect in this 
Special Fraud Alert may also implicate the Ethics in Patient 
Referrals Act, also known as the Stark law (section 1877 of the 
Act). The interpretation of the Stark law is under the jurisdiction 
of the Health Care Financing Administration (HCFA).
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Suspect Rental Arrangements for Space in Physician Offices

    The questionable features of suspect rental arrangements for space 
in physicians' offices may be reflected in three areas:
     The appropriateness of rental agreements;
     The rental amounts; and
     Time and space considerations.
    Below, we examine these suspect areas, which separately or together 
may result in an arrangement that violates the anti-kickback statute, 
in order to help identify questionable rental arrangements between 
physicians and the suppliers to which they refer patients. This list is 
not exhaustive, but

[[Page 9276]]

rather gives examples of indicators of potentially unlawful activity.
Appropriateness of Rental Agreements
    The threshold inquiry when examining rental payments is whether 
payment for rent is appropriate at all. Payments of ``rent'' for space 
that traditionally has been provided for free or for a nominal charge 
as an accommodation between the parties for the benefit of the 
physicians' patients, such as consignment closets for DMEPOS, may be 
disguised kickbacks. In general, payments for rent of consignment 
closets in physicians' offices are suspect.\5\
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    \5\ This Special Fraud Alert does not address the 
appropriateness of consignment closet arrangements under HCFA's 
DMEPOS supplier standards. The interpretation of the DMEPOS supplier 
standards is a matter under HCFA's jurisdiction.
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Rental Amounts
    Rental amounts should be at fair market value, be fixed in advance 
and not take into account, directly or indirectly, the volume or value 
of referrals or other business generated between the parties. Fair 
market value rental payments should not exceed the amount paid for 
comparable property. Moreover, where a physician rents space, the rate 
paid by the supplier should not exceed the rate paid by the physicians 
in the primary lease for their office space, except in rare 
circumstances. Examples of suspect arrangements include:
     Rental amounts in excess of amounts paid for comparable 
property rented in arms-length transactions between persons not in a 
position to refer business;
     Rental amounts for subleases that exceed the rental 
amounts per square foot in the primary lease;
     Rental amounts that are subject to modification more often 
than annually;
     Rental amounts that vary with the number of patients or 
referrals;
     Rental arrangements that set a fixed rental fee per hour, 
but do not fix the number of hours or the schedule of usage in advance 
(i.e., ``as needed'' arrangements);
     Rental amounts that are only paid if there are a certain 
number of Federal health care program beneficiaries referred each 
month; and
     Rental amounts that are conditioned upon the supplier's 
receipt of payments from a Federal health care program.
Time and Space Considerations
    Suppliers should only rent premises of a size and for a time that 
is reasonable and necessary for a commercially reasonable business 
purpose of the supplier. Rental of space that is in excess of 
suppliers' needs creates a presumption that the payments may be a 
pretext for giving money to physicians for their referrals. Examples of 
suspect arrangements include:
     Rental amounts for space that is unnecessary or not used. 
For instance, a CORF requires one examination room and rents physician 
office space one afternoon a week when the physician is not in the 
office. The CORF calculates its rental payment on the square footage 
for the entire office, since it is the only occupant during that time, 
even though the CORF only needs one examination room;
     Rental amounts for time when the rented space is not in 
use by the supplier. For example, an ultrasound supplier has enough 
business to support the use of one examination room for four hours each 
week, but rents the space for an amount equivalent to eight hours per 
week;
     Non-exclusive occupancy of the rented portion of space. 
For example, a physical therapist does not rent space in a physician's 
office, but rather moves from examination room to examination room 
treating patients after they have been seen by the physician. Since no 
particular space is rented, we will closely scrutinize the proration of 
time and space used to calculate the therapist's ``rent.''.
    In addition, rental amount calculations should prorate rent based 
on the amount of space and duration of time the premises are used. The 
basis for any proration should be documented and updated as necessary. 
Depending on the circumstances, the supplier's rent can consist of 
three components: (1) Exclusive office space; (2) interior office 
common space; and (3) building common space.
    1. Apportionment of exclusive office space.--The supplier's rent 
should be calculated based on the ratio of the time the space is in use 
by the supplier to the total amount of time the physician's office is 
in use. In addition, the rent should be calculated based on the ratio 
of the amount of space that is used exclusively by the supplier to the 
total amount of space in the physician's office. For example, where a 
supplier rents an examination room for four hours one afternoon per 
week in a physician's office that has four examination rooms of equal 
size and is open eight hours a day, five days per week, the supplier's 
prorated annual rent would be calculated as follows:

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                                            Percent of physician
    Physician office rent per day          office space rented by         Percent of each day         No. of days rented by
                                                  supplier                rented by supplier            supplier per year
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Annual rent of primary lease           x   Sq. ft. exclusively      x   4 hours  8       x   52 days (i.e.,           =   Supplier's annual rent
  no. of work days per year.        occupied by supplier         hours.                        1 day per           for exclusive space
                                             total office                                     week).
                                            sq. ft.
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    2. Apportionment of interior office common space.--When permitted 
by applicable regulations, rental payments may also cover the interior 
office common space in physicians' offices that are shared by the 
physicians and any subtenants, such as waiting rooms. If suppliers use 
such common areas for their patients, it may be appropriate for the 
suppliers to pay a prorated portion of the charge for such space. The 
charge for the common space must be apportioned among all physicians 
and subtenants that use the interior office common space based on the 
amount of non-common space they occupy and the duration of such 
occupation. Payment for the use of office common space should not 
exceed the supplier's pro rata share of the charge for such space based 
upon the ratio of the space used exclusively by the supplier to the 
total amount of space (other than common space) occupied by all persons 
using such common space.
    3. Apportionment of building common space.--Where the physician 
pays a separate charge for areas of a building that are shared by all 
tenants, such as building lobbies, it may be appropriate for the 
supplier to pay a prorated portion of such charge. As with interior 
office common space, the cost of the building common space must be 
apportioned among all physicians and subtenants based on the amount of 
non-

[[Page 9277]]

common space they occupy and the duration of such occupation. For 
instance, in the example in number one above, the supplier's share of 
the additional levy for building common space could not be split 50/50.

The Space Rental Safe Harbor Can Protect Legitimate Arrangements

    We strongly recommend that parties to rental agreements between 
physicians and suppliers to whom the physicians refer or for which 
physicians otherwise generate business make every effort to comply with 
the space rental safe harbor to the anti-kickback statute. (See 42 CFR 
1001.952(b), as amended by 64 FR 63518 (November 19, 1999)). When an 
arrangement meets all of the criteria of a safe harbor, the arrangement 
is immune from prosecution under the anti-kickback statute. The 
following are the safe harbor criteria, all of which must be met:
     The agreement is set out in writing and signed by the 
parties.
     The agreement covers all of the premises rented by the 
parties for the term of the agreement and specifies the premises 
covered by the agreement.
     If the agreement is intended to provide the lessee with 
access to the premises for periodic intervals of time rather than on a 
full-time basis for the term of the rental agreement, the rental 
agreement specifies exactly the schedule of such intervals, their 
precise length, and the exact rent for such intervals.
     The term of the rental agreement is for not less than one 
year.
     The aggregate rental charge is set in advance, is 
consistent with fair market value in arms-length transactions, and is 
not determined in a manner that takes into account the volume or value 
of any referrals or business otherwise generated between the parties 
for which payment may be made in whole or in part under Medicare or a 
State health care program.
     The aggregate space rented does not exceed that which is 
reasonably necessary to accomplish the commercially reasonable business 
purpose of the rental.
    Arrangements for office equipment or personal services of 
physicians' office staff can also be structured to comply with the 
equipment rental safe harbor and personal services and management 
contracts safe harbor. (See 42 CFR 1001.952(c) and (d), as amended by 
64 FR 63518 (November 19, 1999)). Specific equipment used should be 
identified and documented and payment limited to the prorated portion 
of its use. Similarly, any services provided should be documented and 
payment should be limited to the time actually spent performing such 
services.

What To Do If You Have Information About Fraud and Abuse Against 
Medicare or Medicaid Programs

    If you have information about physicians, DMEPOS suppliers, CORFs 
or other suppliers engaging in any of the activities described above, 
contact any of the regional offices of the Office of Investigations of 
the Office of Inspector General, U.S. Department of Health and Human 
Services, at the following locations:

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         Field offices              States served          Telephone
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Boston........................  MA, VT, NH, ME, RI,         617-565-2664
                                 CT.
New York......................  NY, NJ, PR, VI.......       212-264-1691
Philadelphia..................  PA, MD, DE, WV, VA,         215-861-4586
                                 DC.
Atlanta.......................  GA, KY, NC, SC, FL,         404-562-7603
                                 TN, AL, MS.
Chicago.......................  IL, MN, WI, MI, IN,         312-353-2740
                                 OH, IA.
Dallas........................  TX, NM, OK, AR, LA,         214-767-8406
                                 CO, UT, WY, MT, ND,
                                 SD, NE, KS, MO.
Los Angeles...................  AZ, NV, So. CA.......       714-246-8302
San Francisco.................  No. CA, AK, HI, OR,         415-437-7961
                                 ID, WA.
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    Dated: February 16, 2000.
June Gibbs Brown,
Inspector General.
[FR Doc. 00-4212 Filed 2-22-00; 8:45 am]
BILLING CODE 4150-01-U