The physician-owners made the anesthesiologist an offer they thought he couldn't refuse: Buy a 4-percent share in our ambulatory surgery center for $40,000. But the anesthesiologist is likely going to decline - not because his head or his heart is telling him it's not a good deal, but because his wallet is.

An anesthesiologist who goes from contractor-employee to owner-investor would have to do one-third of his pain management cases in the surgery center he owns shares in to comply with the one-third of cases rule, a federal regulation designed to ensure that each physician-investor in a multi-specialty facility is actively using the center in his practice rather than profiting from referrals to other surgeons. And every time he did a pain management case at the ASC, he'd be sacrificing a major portion of his facility fee. For example, the $180 in Medicare reimbursement he currently receives for doing an epidural in his office would shrink to $86 if he were to do the same case in an ASC in which he invests.

"You must balance what you'll lose in trying to meet the one-third rules versus what you'll gain in return on your investment," says the anesthesiologist, who spoke on the condition of anonymity. "I figured I'd be losing $7,000 or $8,000 in professional fees per year and wouldn't break even for at least five years."

Another anesthesiologist we spoke to, Adam F. Dorin, MD, MBA, the medical director of the SHARP Grossmont Plaza Surgery Center in San Diego, Calif., says he's had had the opportunity to invest in several facilities and "thankfully, I have avoided doing so," he says.

But, he adds, "from a purely business perspective, anesthesiologists should want to own anything they can get there hands on, surgeons should want to avoid anesthesiologists and utilize CRNAS exclusively (something I detest from a clinical safety-depth perspective) and hospitals-health system chains should want to employ anesthesiologists."

Walking a tightrope
While some physicians groups are very aggressive in saying that anesthesiologists should never have equity, others are in favor letting anesthesiologists own a small number of shares.

"I am comfortable with anesthesia ownership but essentially believe it should be with doctors the surgery center has worked with for a long time," says healthcare lawyer Scott Becker, Esq., CPA, co-chairman of the healthcare department at Chicago-based law firm McGuire Woods. Mr. Becker notes that there isn't a safe harbor protection for anesthesiologists except for pain management doctors who meet the one-third rules. He also says you should have special provisions in your agreements to allow buyout of the anesthesiologist when he's no longer working at the center.

An anesthesiologist's (or, for that matter, a plastic surgeon's) investment in a surgery center may prevent the surgery center from fitting within the ASC safe harbor, lawyers say. But there is little risk the surgery center will be prosecuted under the Anti-kickback Statute because of investment by an anesthesiologist or a plastic surgeon as long as each such physician generates one-third of his medical practice income from outpatient surgical procedures, says Joseph A. Sowell II, JD, a healthcare lawyer with Waller Lansden Dortch & Davis in Nashville, Tenn.

Inherent advantages
If structured appropriately, the benefits of partnering with anesthesia providers outweigh the drawbacks, says Tom Yerden, MHA, the CEO of Aspen Healthcare, Inc. "As a partner, anesthesiologists have an added incentive to continually enhance the efficiency of the OR schedule, seek revenue enhancement opportunities and help reduce expenses," says Mr. Yerden. "Anesthesiologists are on the front line with the surgeons, patients and staff. They're likely to be the first to recognize opportunities to improve performance, enhance quality of care, and provide more and better service to our customers."

The pool of qualified outpatient-trained anesthesiologists and medical director candidates is limited. "Those centers that offer even a small share of units to their anesthesiologists are likely to attract the best candidates," says Mr. Yerden.