The old French proverb “the more things change, the more they stay the same” comes to mind as one reads the HHS Office of the Inspector General’s most recent statements about joint ventures between heath care providers. On September 8, 2010, the OIG issued an Advisory Opinion concerning a joint venture between a multi-hospital health system and an independent physician organization with 800 doctors. See HHS-OIG, Advisory Opinion No. 10-15 (Sept. 9, 2010). The proposed joint venture would be an outpatient care center owned 50 percent by each party. The OIG approved of the arrangement.
While Advisory Opinion 10-15 contains a lengthy explanation of the proposed joint venture, the Opinion provides no meaningful new insights into the regulatory restrictions that apply to joint ventures. But, the Opinion is useful because it confirms that two longstanding principles still apply. First, the OIG remains “concerned” about “problematic” joint ventures between parties that are in a position to make referrers. This is the OIG’s way of both acknowledging that joint ventures are not per se illegal, while also indicating that joint ventures can run afoul of fraud and abuse laws if not properly structured. Second, the OIG confirmed that its 1989 guidance concerning joint ventures still applies. See HHS-OIG, Special Fraud Alert on Joint Venture Arrangements (1989), reprinted in 59 Fed. Reg. 65372, 65373 (Dec. 19, 1994). While more than 20 years have passed since the OIG issued its 1989 guidance on joint ventures, the Opinion reminds us that those standards still apply to joint ventures that do not fall within one of the (subsequently created) safe harbors.
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