The OIG's first advisory opinion
The
OIG issued its first advisory opinion under this new law in the summer of
1997. It addressed the
practice of providers of
kidney dialysis contributing money to the
American Kidney Foundation (a charitable organization) for the purpose of
providing dialysis services to needy patients.
The contributions were made without strings attached and without restrictions. The question for the OIG was whether these charitable contributions constituted “payments to eligible beneficiaries of a Federal Health Care Program,” which is one of the new federal crimes.
After lengthy deliberation, the OIG magnanimously opined that the charitable contributions would not constitute a violation, since they were not made directly to beneficiaries but through an independent, charitable organization. One would suppose this advisory opinion to have been a no-brainer, since it ought to be completely obvious that the activity it addressed would never have been construed as a violation of the law by anybody, at least not until HIPAA. Yet, the OIG saw fit to qualify even this advisory opinion in several ways.
In its report, for instance, the OIG stipulated that its opinion is binding only for the individual entities requesting this particular opinion, and “has no application and cannot be relied upon by any other individual or entity.” Also, the opinion is stipulated to be strictly limited to the facts described therein, and applies only “as long as all of the material facts have been fully, completely and accurately presented and the arrangement in practice comports with the information provided.” Further, no other party may introduce this advisory opinion into evidence in a legal proceedings. No other federal or state agency is bound by this opinion. This advisory opinion has “no applicability to other arrangements, even those which appear similar in nature or scope.”
Oh, and my favorite – the OIG “reserves the right to reconsider the questions and issues raised in this advisory opinion and, where the public interest requires, modify or terminate this opinion.”
Clarity at its best. We know we’d sleep well if we were dialysis providers.
(This first advisory opinion was described by Teplitsky S. OIG Activity: First advisory opinion issued. Ober/Kaler Health Law Alert. Summer/Fall, 1997. )