The OIG has responded to a letter requesting confirmation that a malpractice insurance assistance program proposed to be offered by hospitals owned by an unidentified party to medical staff physicians in states experiencing a crisis in the malpractice insurance market would not violate the federal illegal remuneration statute and Stark Law found at Social Security Act Sections 1128B(b) and 1877, respectively. Although declining to render an opinion about the arrangement that was the subject of the letter (which was not submitted pursuant to the formal advisory opinion process), the OIG noted that the existence of a malpractice insurance crisis in a particular market, with the potential to disrupt access to care by federal health program beneficiaries, would be considered in exercising prosecutorial discretion with respect to malpractice assistance programs The OIG also set forth safeguards contained in the arrangement that was the subject of the letter that would be viewed as favorable from a referral law liability perspective. These included offering the assistance only on an interim basis during the duration of the crisis and establishing criteria for eligibility that is not related to the volume or value of referrals from the physician to the hospital offering the assistance.
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