The OIG released an advisory opinion on a pay-for-call plan May 21, while re-enforcing concerns about the legality of more traditional call payments.  The OIG also stated that while this plan was approved, payment for call requires careful scrutiny to avoid fraud and abuse violations.

The chief elements of the plan were similar to a prior opinion, but the mode of setting compensation differed.

The current plan approval centered on

1. Proven difficulty in covering call
2. A requirement for an Individual contract for 2 years to bring the agreement under Safe Harbor provisions
3. A Timely response requirement
4. Access to the program was open to all physicians -- i.e. not limited to certain specialties
5. Participants are paid flat fees for each of 4 categories of services performed and the rates are certified within market rates

Another big plus for the plan from the OIG's analysis was that it only paid for uninsured or where attempts to obtain Medicaid coverage failed.

The opinion noted that on-call compensation plans were potential violations when payments are made for:

• "lost opportunity" or similarly designed payments, such as payment is for holding oneself available for call, which often is structured as a per diem payment;
• systems that compensate physicians when no identifiable services are renders, again such as per diem payments for days on call or fixed compensation for simply responding to call and not tied to scope of services;
• systems that pay the physician regardless of whether they are compensated by insurance or other payments and which provide excess or double payment, which again might include per diem plans, per call plans, or per procedure payments that are not reduced for insurance received.

These and other unspecified forms of plans were consider at significant risk of fraud and abuse violations.

"There is a substantial risk that improperly structured payments for on-call coverage could be used to disguise unlawful remuneration.

                                                       
Notwithstanding the legitimate reasons for such arrangements, on-call coverage compensation potentially creates considerable risk that physicians may demand such compensation as a condition of doing business at a hospital, even when neither the services provided nor any external market factor (e.g., a physician shortage) support such compensation. Similarly, payments by hospitals for on-call coverage could be misused to entice physicians to join or remain on the hospital’s staff or to generate additional business for the hospital" according to the opinion.

The OIG warned that the law does not require hospitals to pay for call nor does it state that physician must render care without compensation. (Publisher's note: although EMTALA call lists are mainly driven by uncompensated call requirements under the medical staff bylaws.) 

"Finally, we note that nothing in this opinion should be construed to require a hospital or other facility to pay for on-call coverage. To the contrary, on-call coverage ompensation should be scrutinized closely to ensure that it is not a vehicle to disguise payments for referrals," the opinion concluded.