Yes, you can offer anesthesiologists shares in your surgical center, but only if you comply with federal regulations along the way. Here's advice to keep such transactions trouble-free.

Analyzing safe harbor risk
First, be warned that permitting anesthesiologist-investors may take your ASC out of compliance with the federal anti-kickback statute's (AKS) ASC safe harbor. The AKS safe harbor generally doesn't protect an ASC with a physician-investor who doesn't use the ASC's facility to perform ASC-covered procedures but is otherwise in a position to furnish services to the ASC. So a traditional (non-pain management) anesthesiologist's investment in an ASC will technically disqualify the ASC from the AKS safe harbor since he performs anesthesia services for the ASC without using the facility to perform ASC-covered procedures.

But don't panic. The AKS safe harbor is very narrowly tailored. Failing to comply with the safe harbor doesn't mean that your ASC is in violation of the AKS. Rather, the anesthesiologist's investment would have to be closely analyzed to determine whether it was intended to induce referrals to the ASC. For example, if an anesthesiologist doesn't refer any procedures to the ASC and doesn't have an arrangement with a referral source to generate referrals to the ASC, then his investment in an ASC doesn't likely pose a significant level of AKS risk.

Complying with the 'one-third' tests
If an anesthesiologist performs pain management procedures, then your ASC may still qualify for AKS safe harbor protection, as long as the anesthesiologist complies with the "one-third" tests. This means that at least one-third of the anesthesiologist's medical practice income must come from the performance of ASC-covered procedures — and if it's a multi-specialty ASC, the anesthesiologist performs at least one-third of ASC-covered procedures at the ASC in which the anesthesiologist is an investor.

If, however, the anesthesiologist doesn't comply with the "one-third" tests, then his investment may raise AKS concerns. His investment could be perceived as enabling a physician to profit from passive referrals.

Additionally, many ASCs desire to re-purchase the interests of physician-owners who don't comply with the "one-third" tests or who otherwise fail to use the facility as an extension of their medical practice. AKS concerns could arise if an ASC attempts to selectively enforce compliance with the "one-third" tests against certain non-productive surgeon-investors, but not the anesthesia-pain-management-investors.

Proceed with caution
There's no denying that it's tempting for ASCs to offer investment interests to anesthesiologists. On the one hand, anesthesiologists who specialize in pain management procedures can generate significant additional ASC facility fees. On the other, letting anesthesiologists own ASC equity can solidify their commitment to perform and supervise anesthesia services at your facility and establish a more "partnerly" relationship among the surgeons and anesthesia providers. Just proceed with caution, mindful of the pitfalls along the way.