OIG Issues Favorable Advisory Opinion on ASC Ownership Succession Planning

OIG Issues Favorable Advisory Opinion on ASC Ownership Succession Planning - Healthcare Law Update - May 2026 - Brach Eichler
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5/1/2026

On March 4, 2026, the U.S. Department of Health and Human Services, Office of Inspector General (OIG) issued a favorable Advisory Opinion approving a multiphase succession plan involving the transfer of ownership interests in a Medicare-certified ambulatory surgical center (ASC) by a retiring physician to his immediate family members. Specifically, the advisory opinion analyzed whether the transfers of ownership interest by the retiring physician first to his non-physician wife and then to their two physician children, would be prohibited under the Anti-Kickback Statute (AKS) and the civil monetary penalty law (CMPL). The OIG acknowledged that the succession plan could technically trigger anti-kickback concerns, as the physician investors would hold ownership interests in the ASC while also referring patients to the ASC. Despite this, the OIG concluded the arrangement presented a low risk of fraud and was permissible for several important reasons, including:

• The Arrangement Was a Bona Fide Estate Plan. The OIG emphasized that the succession plan was a genuine estate planning strategy, not a scheme to reward referrals.

• Fair Market Value Purchases. Purchases of shares would be made at fair market value as determined by an independent valuation firm.

• Safeguards Upon Retirement. The retiring physician would provide a written certification that he would not directly or indirectly influence referrals to the ASC; he would not formally transfer his patients to his physician children, and would not maintain any administrative or governance role upon retirement.

Click Here to read the entire May 2026 Healthcare Law Update now!

For more information, contact:
Lani M. Dornfeld, CHPC | 973.403.3136 | ldornfeld@bracheichler.com
Richard B. Robins | 973.447.9663 | rrobins@bracheichler.com
Cynthia J. Liba | 973.403.3106 | cliba@bracheichler.com

*This is intended to provide general information, not legal advice. Please contact the authors if you need specific advice.

Related Practices:   Healthcare Law

Related Industry:   Healthcare