Greenberg Traurig Alert
OIG Special Fraud Alert: Guidelines for Rental Arrangements
By Sonya A. Penley, Greenberg Traurig,
View or download the PDF version of this Alert here.
It may be too good to be true. On February 23, 2000, the Office of the Inspector
General ("OIG") issued a Special Fraud Alert which features a format to help
physicians structure lease rental payments that will stand up to scrutiny. Physicians
should carefully assess rental arrangements where unnecessary or excessive rent to
doctor-landlords is paid by equipment suppliers, outpatient rehabilitation providers and
others that provide health care items or services ("suppliers"). Such
arrangements can serve as a disguised kickback for referrals. The recently announced Fraud
Alert will allow physicians to better determine whether their particular arrangement may
run afoul of federal laws.
Physicians who collect too much rent from suppliers or other providers who sub-let
could be held liable under the Federal Anti-kickback statute. There are 3 areas that must
be evaluated in determining if a rental arrangement is "suspect": the
appropriateness of the rental agreement, the rental amount, and time and space
First, is the rental payment appropriate to begin with? Often, space leased to
equipment suppliers has been provided free of charge to the landlord. Therefore, payment
of rent by these equipment suppliers would be considered "suspect" under the
Fraud Alert. This is particularly true for rent on consignment closets for durable medical
Second, fair market value should always be the standard in determining rental payment
amounts. The Fraud Alert provides that the rate paid by the supplier should not exceed the
rate paid by the physician under his lease agreement. To be safe, rent should be a fixed
amount set forth for a term of no less than one year. The Fraud Alert lists several
"suspect arrangements" which include: amounts in excess of fair market value,
fixed amounts per hour without an advanced schedule of usage (i.e. "as needed"
arrangements), and amounts that are contingent on a certain number of patients each month.
Finally, the rent paid should only cover the time and space actually necessary to
operate the business of the provider/supplier. This amount should be pro-rated based on
time and space utilized: "The suppliers rent should be calculated based on the
ratio of the time the space is in use by the supplier to the total amount of time the
physicians office is in use... The rent should be calculated based on the ratio of
the amount of space that is used exclusively by the supplier to the total amount of space
in the physicians office," according to the Fraud Alert. Also, rent payments
for the common space shared by all physicians and sub-tenants (building, lobbies, and
waiting rooms) should be split among all physicians and sub-tenants based on the amount of
non-common space they occupy and the time they spend there.
The Fraud Alert points out that physicians should ensure that their rental arrangements
pass the Federal Anti-kickback statutes space rental "safe harbor." By
complying with this "safe harbor," physicians are assured of weathering the
enforcement of Federal Anti-kickback laws. The space rental safe harbor requires that the
agreement be written and signed by the parties; that it specify the premises rented;
specify if the lessee has full-time or periodic access to the premises and the times
allowed; that the term is for not less than one year; that the rental amount be set in
advance to reflect fair market value and may not vary based on the volume or value of
referrals; and that the amount of space rented is reasonably necessary for the business
purpose. If your arrangement meets all of the space rental "safe harbor"
elements, you are likely to be immune from prosecution under the Federal Anti-kickback
The Special Fraud Alert is available on the OIGs website at http://www.hhs.gov/oig/frdalrt/index.htm
© 2000 Greenberg Traurig
This GT ALERT is issued for informational purposes only and is not intended
to be construed or used as general legal advice. Greenberg Traurig attorneys provide
practical, result-oriented strategies and solutions tailored to meet our clients’
individual legal needs.