Physician Estate Planning Meets the Anti-Kickback Statute: Lessons From OIG on Physician-Owned ASCs

Key Takeaways

• OIG weighs in on physician-owned ASC succession planning. Advisory Opinion No. 26-04 addressed a physician’s phased plan to transition ASC ownership to family members ahead of retirement, offering rare insight into how OIG evaluates estate planning arrangements that implicate the Anti-Kickback Statute (“AKS”).
• The proposed arrangement involved straightforward gifts, fair market value purchases, and testamentary transfers. For physicians whose wealth is concentrated in their practice, structuring estate planning around regulatory clarity can be as valuable as tax optimization.
• Start early and coordinate across advisors. ASC ownership transitions sit at the intersection of estate planning, corporate governance, and healthcare fraud and abuse compliance. Seeking the advice of healthcare counsel and estate planning attorneys sooner rather than later is advisable.

How the AKS Affects ASC Ownership Transfers and Estate Planning

Physician-owned ambulatory surgical centers (“ASCs”) face a challenge that most closely held businesses do not. When a physician-owner plans for retirement, seeks to bring in new partners, or looks to pass the business to the next generation, the federal AKS adds a layer of complexity that standard estate and succession planning does not account for. Ownership changes that are routine in other industries (e.g., gifting shares to a spouse, selling equity to incoming partners, transferring interests at death) can raise fraud and abuse concerns when the business generates referrals for services reimbursable by Medicare, Medicaid, or other federal healthcare programs.¹

Despite the risks, there is limited published guidance on how to structure ASC ownership transitions in a way that satisfies both estate planning objectives and anti-kickback requirements. On March 4, 2026, the Department of Health and Human Services, Office of Inspector General (“OIG”) issued Advisory Opinion No. 26-04 (“AO 26-04”)offering a rare look at how the agency that enforces the AKS evaluates these types of arrangements. The opinion addressed a physician’s phased plan to transition ASC ownership to family members ahead of retirement. OIG favorably concluded that, although the arrangement could implicate the AKS, it presented sufficiently low risk to warrant a favorable opinion.

AO 26-04 provides a practical framework for ASC owners thinking about succession.

Structure of the Physician ASC Ownership Transfer

The arrangement unfolds in three phases, built around a dual-class share structure. The separation keeps the family succession plan and the business growth plan on independent tracks.

1. 900 Class A “family” shares: Reserved for the physician-owner’s immediate family.
2. 100 Class B “outside” shares: Reserved for potential future physician investors from outside the family.

In Phase 1, Physician A, the ASC’s sole owner and a pain management specialist, begins shifting ownership to his family. He gifts 290 of the 900 Class A shares to his spouse, who is not a physician and would have no role in the ASC’s operations. He also gives each of his two children, both physicians in the same specialty, the option to buy up to 50 Class A shares at fair market value. The fair market value requirement is important to ensure the transaction is a legitimate purchase, not a disguised payment that could be viewed as compensation for referrals for federal healthcare program business.

Phase 2 is triggered if the board votes to bring in outside physician investors. During this phase, the ASC would offer up to 100 Class B shares to new physicians at fair market value, potentially expanding from a single-specialty center to a multi-specialty one depending on the investors’ practice areas. Physician A retires during this phase and provides a written certification that he will not influence referrals to the ASC after retirement. Rather than formally handing off his patient panel to his children, he will provide departing patients with a list of alternative pain management specialists, a list that could include, but would not be limited to, his children. These certifications and structural safeguards are designed to demonstrate that the ownership transition is not tied to securing a referral base.

Phase 3 commences upon the deaths of both Physician A and his spouse. At that point, all remaining ownership interests transfer by bequest or trust distribution to the two physician children. The ASC certified this was part of a documented, long-term estate plan supported by trust documents and family business plans, not an ad hoc arrangement.

AKS Safe Harbor Compliance for ASC Ownership and Investment Structures

OIG’s analysis drew a distinction that not all transactions in an ownership transition receive the same level of protection. The AKS includes specific “safe harbors” — pre-approved categories of arrangements that, if their conditions are met, will not be treated as violations. Some parts of the proposed arrangement qualified for safe harbor protection. While others did not satisfy any safe harbor, OIG still considered them as low risk and issued a favorable opinion.

Financial distributions (i.e., returns on investment paid out to shareholders) satisfied the single-specialty or multi-specialty ASC safe harbors. During Phase 1, when all physician investors practice the same specialty, distributions qualified for the single-specialty ASC safe harbor. Once outside physicians of potentially different specialties enter during Phases 2 and 3, the multi-specialty ASC safe harbor applied. Both safe harbors require the ASC to certify, among other things, that investment terms are not tied to referral volume, each physician investor derives at least one-third of income from performing procedures, and no loans are made to help investors acquire their interests.

The ownership transfers to the spouse and physician’s two children and the sales of shares to outside physician investors did not qualify for safe harbor protection. The gift of shares to the spouse, for example, does not involve a fair market value purchase, placing it outside the safe harbor framework. The same is true for the testamentary transfers at death in Phase 3. However, OIG evaluates these arrangements on a case-by-case basis, and found them to be low risk. For the spousal gift, OIG emphasized that the spouse has no clinical background and is not in a position to refer patients or influence referrals. For the children’s purchase options and eventual inheritance, OIG credited the bona fide estate planning purpose and the fact that the ASC maintained formal supporting documentation. The Class B share sales to outside physician investors were similarly viewed as low risk given fair market value pricing and the documented planning framework.

Across all three phases, OIG consistently pointed to the same factors: fair market value transactions where applicable, formal estate planning documentation, and clear separation between investors who refer patients and those who do not.

Practical Compliance Lessons From AO 26-04

AO 26-04 is a useful reference point for physicians considering succession planning for their ASCs and carries broad lessons for healthcare estate planning.

Not every ownership transfer will qualify for safe harbor protection, but that does not mean it cannot be done. Physicians structuring succession plans around ASC interests should expect that gifts to family members, transfers at death, and other non-standard transactions will be evaluated on their specific facts. The goal is to structure those transfers so they present low enough fraud and abuse risk to withstand scrutiny even without satisfying an AKS safe harbor.

Documentation is critical. OIG repeatedly noted that the ASC maintained trust documents and business succession plans supporting the estate planning characterization. By maintaining thorough documentation and ensuring fair market value where required, physician-owners can help reduce regulatory concerns of fraud and abuse.

Regulatory clarity can be as valuable as tax optimization. Estate planners often recommend sophisticated tools (e.g., grantor retained annuity trusts (“GRATs”), sales to intentionally defective grantor trusts (“IDGTs”), or dynasty trusts) to minimize gift, estate, and generation-skipping transfer taxes. The proposed arrangement in the opinion uses none of these. Instead, it relies on straightforward gifts, fair-market-value purchases, and testamentary transfers. For many physicians whose wealth is concentrated in their practice, a clean succession plan that passes regulatory muster may be preferable to an aggressive tax strategy that may invite enforcement questions. Physicians with larger estates may still pursue more complex planning, but should do so with the understanding that each additional layer of complexity will require careful regulatory analysis.

Keeping the estate plan and the business plan structurally distinct appears to matter. The dual-class structure in the opinion works because family succession and outside investor recruitment run on independent tracks. Arrangements that blur those lines would likely draw greater scrutiny. For example, tying family transfers to referral expectations or conditioning ownership on patient volume may increase regulatory risk.

Succession planning for ASCs requires a coordinated approach. AO 26-04 is a reminder that ownership transitions in healthcare do not happen in a vacuum. Estate planning, corporate governance, regulatory compliance, and referral management all intersect. Physicians who begin planning early and consult healthcare and estate planning legal advisors are better positioned to structure transitions that achieve their personal and business objectives without creating unnecessary regulatory exposure. This applies whether the goal is passing the ASC to the next generation, admitting new physician partners, or preparing the business for an eventual sale or merger.

AGG’s Healthcare, Life Sciences, and Private Wealth teams regularly advise physician-owners and ASCs on regulatory compliance, ownership structuring, and succession planning. If you have questions about how OIG may evaluate your planning, or if you are considering an ownership transition and want to understand the anti-kickback implications, please contact a member of our team.

[1] ASC ownership transitions may also implicate state anti-kickback, fee-splitting, and corporate practice of medicine laws, which vary by jurisdiction. For more information on these other potential restrictions, please contact the authors.