OIG Joint Venture Advisory Opinion Does Not Consider Multiple Court Decisions That Undermine the Conclusions in its Opinion

On November 17, 2021, the HHS Office of Inspector General issued an advisory opinion that the proposed joint venture arrangement between a therapy services company and a company that owns skilled nursing facilities, if undertaken, could generate prohibited remuneration under the Anti-Kickback Statute “if the requisite intent were present.” The OIG observed that its opinion reflected its longstanding concern regarding JV arrangements, “especially where all or most of the business from the joint venture is derived from one of the joint venture investors.” However the scope of material the OIG may consider is limited, omitting multiple court decisions that the OIG did not, and cannot, consider.