Trustees and ASCs: OIG OKs Proposed Estate Planning Transfers

The U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) issued a favorable advisory opinion on March 4, 2026, with respect to proposed ownership transfers in a Medicare-certified ambulatory surgery center (ASC) for estate planning purposes. The advisory opinion provides clarity on OIG's view of estate planning tactics commonly utilized by physician investors in the ASC industry when certain safeguards are in place and reaffirms OIG's position that transactions are less likely to pose significant risk under the federal Anti-Kickback Statute (AKS) when they 1) are determined to be fair market value by an independent third-party appraiser and 2) require delivery of nonreferral certifications from physicians in a position to influence referrals to the center.

The ASC that requested the advisory opinion proposed a multistep plan for transfers of the ASC's ownership. At the time of request, a single surgeon who performed procedures at the ASC (Original Physician) owned 100 percent of the ASC. The Original Physician's proposed estate planning strategy involved 1) gifting an ownership interest to his spouse (who was not a physician or otherwise in a position to direct referrals to the ASC), 2) granting fair market value purchase options to his two children, each of whom is a surgeon that performs procedures at the ASC (the Beneficiaries), 3) potentially offering ownership interests to new physician investors at fair market value and 4) upon the death of both the Original Physician and his spouse, gifting their remaining ownership interests to the Beneficiaries.

OIG's Analysis

OIG indicated that the proposed arrangement, if undertaken, could violate the AKS if the requisite intent were present but ultimately determined that it would not impose sanctions considering the safeguards in place. OIG analyzed the proposed arrangement in two parts: 1) financial distributions to the proposed transferees and 2) transfers of ASC ownership interests.

OIG found that the proposed financial distributions should not run afoul of the AKS, primarily because of the ASC's certifications that the elements of the AKS safe harbors for investments in ambulatory surgery centers (single-specialty and multi-specialty, as applicable) would be satisfied, including relevant one-third tests, pro rata distributions and patient notification of each physician investor's ownership interest.

In its analysis, OIG placed particular emphasis on the safe harbor requirements that investors be either 1) physicians in a position to perform procedures at the ASC or 2) nonphysician investors who are not in a position to make or influence referrals to the ASC or any of its investors. Although OIG indicated that the proposed ownership transfers would not satisfy any AKS safe harbor, it issued a favorable advisory opinion as a result of the "sufficiently low" risk of fraud and abuse, as supported by the key facts delineated below:

• The ownership transfers were part of a "bona fide estate planning strategy" supported by appropriate documentation (i.e., trust documents, family business plans).
• The ownership transfers (other than the gift transfers) would be at a purchase price consistent with fair market value as determined by an independent third-party valuation firm.
• Upon retirement, the Original Physician would 1) not formally transition or assign his patient panel to the Beneficiaries, 2) certify in writing that he would not refer cases to the ASC and 3) not maintain any administrative or governance role at the ASC upon retirement, making it less likely that the Original Physician would improperly influence referrals to the ASC.
• The Original Physician's spouse was not a clinician and did not work in the healthcare industry, making it unlikely the spouse would be able to influence referrals to the ASC.

Key Takeaways and Next Steps

Although indirect ownership structures and estate planning strategies are commonly a gray area under the AKS, OIG's conclusion here aligns with a view that many healthcare law practitioners have long held – ownership in ambulatory surgery centers through appropriately structured trusts, and similar estate planning vehicles, can be sufficiently low risk under the AKS. Here, OIG re-emphasized safeguards that are available to mitigate risk under the AKS, each of which can be applied to ASC estate planning strategies:

• A transaction with a purchase price that is fair market value (as determined by an independent third-party appraiser) is less likely to pose significant risk under the AKS.
• A clinician's delivery of a nonreferral certification can reduce the risk that the proposed arrangement would violate the AKS.

To reduce potential risk under the AKS, ASC governing documents should be drafted to 1) limit the types of trusts and other entities permitted to hold an ownership interest, 2) require physician investment entities to submit supporting documentation reflecting any changes to such governing documents or indirect ownership percentages and 3) expressly require that violations of these requirements will trigger buy-sell events. Policies should also prohibit physicians or other investors who retire or otherwise transfer all of their ownership interests in the center from maintaining any governance or operational role at the center that could potentially allow them to influence referrals.

Notably, this advisory opinion leaves open the questions of whether OIG's conclusions would have been different if the Original Physician's spouse had been a healthcare provider or worked in the industry in an administrative capacity, or if the Beneficiaries had been unrelated to the Original Physician. Retiring physicians should be mindful of the AKS risks when structuring their retirement plans.

Holland & Knight is available to answer questions that may arise on this topic.