On July 29, 2009, the Department of Health and Human Services’ Office of Inspector General (“OIG”) posted Advisory Opinion 09-09 regarding a proposed ambulatory surgery center (“ASC”) to be jointly owned by a hospital (the “Hospital”) and seven orthopedic surgeons (the “Surgeons”). While the joint venture would not qualify for the protection of a safe harbor to the federal anti-kickback statute, the OIG determined that it would not impose sanctions. While Advisory Opinion 09-09 does not break new ground, it is useful because it provides insight into the OIG’s stance on valuing intangible assets during transactions. This insight is particularly helpful during this economic difficult time, when many physicians are considering their options relative to investments.
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