HHS OIG Provides Succession Planning Roadmap for ASCs

April 16, 2026

HHS OIG Offers Roadmap for Ambulatory Surgery Center Succession Planning

LauraLee Lawley Parker Poe Adams & Bernstein LLP + Follow Contact LinkedIn Facebook X Send Embed On March 9, 2026, the U.S. Department of Health and Human Services Office of Inspector General (OIG) issued an advisory opinion addressing whether a physician’s proposed transfer of ownership interests in an ambulatory surgery center (ASC), as part of a bona fide estate-planning strategy, could implicate the federal Anti-Kickback Statute. The OIG concluded that it would not impose administrative sanctions, despite the arrangement’s failure to satisfy every element of an applicable safe harbor, because the proposal presented a sufficiently low risk of fraud and abuse.

The opinion provides comfort that thoughtful retirement and succession planning does not have to fit squarely within a safe harbor, giving ASCs a playbook in how to handle physician retirement and succession planning in a compliant manner.

Summary of the Facts
The requestor was a Medicare-certified ASC wholly owned by a single physician. The physician and his two children are each practicing pain management physicians. As part of a documented, multi-phase estate and retirement plan, the physician proposed to transfer his ownership interests in the ASC through a combination of gifts and fair market value sales. Specifically, the plan contemplated:

• A gift of an ownership interest to the physician’s non-physician spouse.
• Options for the physician’s children to purchase ownership interests at fair market value.
• The future sale of ownership interests to other physician investors at fair market value following the physician’s retirement.
• A gift of the remaining ownership held by the physician and his spouse upon death to their children. The estate-planning strategy was supported by formal trust documents and family business planning materials. Ownership interests would be offered and transferred without regard to the volume or value of referrals, and all profit distributions would be made strictly in proportion to ownership interests. The non-physician spouse would not be involved in the ASC’s operations and would not be in a position to refer patients or influence referrals to the ASC. Following retirement, the physician would not be involved in the ASC’s operations or governance.

The arrangement did not meet certain elements of the safe harbor (including sales of ownership interests at less than fair market value). But other elements of the safe harbor (including the one-third tests) would be satisfied by the practicing physician owners.

OIG’s Decision & Rationale
The OIG acknowledged that the proposed ownership transfers could constitute remuneration under the Anti-Kickback Statute if the requisite intent was present and that the arrangement did not satisfy every element of the ASC investment safe harbor for single-specialty surgery centers. Nevertheless, the OIG concluded that it would not impose administrative sanctions because the proposed arrangement posed a sufficiently low risk of fraud and abuse.

In reaching this conclusion, the OIG emphasized several mitigating factors, including:

• The bona fide estate-planning purpose of the arrangement, supported by contemporaneous documentation and certifications.
• The use of fair market value pricing for all ownership interests sold to physicians.
• Profit distributions that were strictly proportional to ownership interests.
• Ownership terms that were not conditioned on, nor related to, the volume or value of referrals.
• The fact that the non-physician spouse was not a referral source and had no ability to influence referrals.
• The fact that the retiring physician would certify that he would not directly or indirectly influence referrals to the ASC or have an administrative or governance role after retirement and did not intend to formally transition or assign his patients to his physician children. Taken together, these safeguards reduced the risk that the ownership transfers would function as an inducement for referrals in violation of the Anti-Kickback Statute.

Implications & Takeaways for ASC Operators & Investors
The advisory opinion provides helpful guidance for ASC operators, physician owners, and investors considering succession, retirement, or estate-planning strategies involving ASC ownership interests. Although advisory opinions are binding only on the requestor, the opinion underscores the OIG’s willingness to consider the totality of the circumstances when evaluating anti-kickback risk, even where an arrangement does not fit squarely within a regulatory safe harbor.

Key takeaways include the importance of clearly documenting bona fide estate or retirement purposes, ensuring that all ownership transfers to physicians occur at fair market value, and maintaining strict separation between ownership and referral considerations. The opinion also highlights that gifts of ASC ownership interests to non-physician family members may be permissible where the transferee is not in a position to generate or influence referrals and does not participate in the ASC’s operations.

For ASC operators and investors, the opinion reinforces the value of careful structuring and documentation when planning ownership transitions and suggests that well-supported estate-planning arrangements can mitigate anti-kickback risk, even in the absence of full safe harbor compliance.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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