ASC anesthesia company model vs contracting a group: what surgery center owners should weigh

In the ASC anesthesia company model, a surgery center's physician-owners form their own anesthesia company. That company bills for the anesthesia, pays the clinicians or their group a negotiated rate and keeps the difference. Contracting a group leaves the professional fee with the clinicians, sometimes topped up by a stipend from the center. The company model can return money to owners. It also moves the collections risk onto them, and it carries the anti-kickback concerns the HHS Office of Inspector General (OIG) set out in Advisory Opinion 12-06 in 2012. Settle the compliance question before you compare the economics.

This article explains the main ways a surgery center gets anesthesia, what the company model involves, what the OIG said about it and what owners should check. It is general information, not legal advice. Any structure in which referring physicians share in anesthesia revenue needs review by healthcare counsel.

Four ways a surgery center gets anesthesia

Most ASCs use one of four arrangements, or a mix of them.

How the ASC anesthesia company model works

The arrangement the OIG reviewed in 2012 follows the usual pattern (Advisory Opinion 12-06):

• Before the change, an anesthesia group covers the center on an exclusive basis and bills patients and payers in its own name.
• The center's physician-owners, or the center itself, set up a separate company to furnish and bill for all anesthesia at the center.
• The company engages the existing group as an independent contractor at a negotiated rate, or employs or contracts the clinicians directly.
• The company pays the group out of its anesthesia collections and keeps any profit, which goes to the owners.

Healthcare attorney Mark F. Weiss describes the same sequence, and variants such as a center that employs the clinicians itself, in an article for Anesthesia Business Consultants (Winter 2019).

What OIG Advisory Opinion 12-06 said

The OIG issued Advisory Opinion 12-06 on May 25, 2012. The requester was an anesthesia group that covered several physician-owned ASCs on an exclusive basis. It said it was under pressure to accept the proposals "to compete with other anesthesia groups in its area that are engaging in similar practices and to stem the loss of its business." It asked about two proposals:

• Arrangement A. The group would keep billing for itself but pay the centers a per-patient fee for "management services," such as pre-operative nursing assessments and space, with federal health care program patients carved out.
• Arrangement B, the company model. Companies owned by the centers or their physician-owners would bill for all anesthesia at the centers, pay the group a negotiated rate and keep the profits.

The OIG concluded that both proposals "could potentially generate prohibited remuneration under the anti-kickback statute" and that it could potentially impose sanctions. On the company model, it found:

• The ASC safe harbor does not cover it. That safe harbor protects returns on investment in a Medicare-certified ASC, and "Anesthesia services are not surgical services," so a company that only provides anesthesia cannot qualify.
• Protecting the clinicians' pay does not protect the owners' profit. The employee and personal services safe harbors (42 CFR 1001.952) could protect what the company pays the clinicians or the group, but not the profits distributed to the physician-owners.
• The owners would carry little real business risk, "because they would control the amount of business they would refer."
• The structure looked like a way around the law. The OIG wrote that "it appears that Proposed Arrangement B is designed to permit the Centers' physician-owners to do indirectly what they cannot do directly; that is, to receive compensation, in the form of a portion of the Requestor's anesthesia services revenues, in return for their referrals to the Requestor."

Carving out federal health care program patients did not rescue Arrangement A either. The group would still serve every patient, and the centers "would be paid twice for the same services."

Three limits matter for owners today:

• The opinion binds only the group that asked. In its own words it "has no applicability to other arrangements, even those which appear similar in nature or scope." It still shows how the OIG analyzes the structure.
• Intent decides a violation, and facts decide intent. The OIG noted that a definitive conclusion "requires a determination of the parties' intent," which advisory opinions do not make. Each deal turns on who owns the company, how profits are distributed, what the clinicians are paid and whether owners' returns track their referrals. Weiss also cautions that paying fair market value "is not a panacea" when the referral source profits from its referrals.
• Other laws apply. The opinion covers only the federal anti-kickback statute and gives no view on the physician self-referral law or state law. Ask counsel which state anti-kickback, fee-splitting or self-referral rules apply to your center, including for commercially insured patients.

CRNA supervision rules in the ASC

If your model relies on CRNAs, the Medicare Conditions for Coverage for ASCs set the baseline. Under 42 CFR 416.42, anesthesia in an ASC may be given by a qualified anesthesiologist, or by another qualified physician, a CRNA, an anesthesiologist assistant or a supervised trainee. A CRNA must be "under the supervision of the operating physician" unless the state has opted out; an anesthesiologist assistant must be supervised by an anesthesiologist. A state opts out when its governor, after consulting the state boards of medicine and nursing, sends CMS a letter requesting the exemption.

Supervision under this rule is not the same as medical direction for billing. In a state that has not opted out, the operating surgeon supervises the CRNA in your rooms. Surgeons sometimes ask what that means for their liability; that is a question for counsel and your malpractice carrier.

Check three things. First, read the regulation itself. Second, confirm whether your state has opted out, and whether its opt-out covers surgery centers. The American Association of Nurse Anesthesiology counts 29 jurisdictions (27 states, the District of Columbia and Guam) as of 2026, but some are limited: it lists the Utah and Wyoming opt-outs as covering only critical access and certain rural or small hospitals, and the District of Columbia's as "for all hospitals" (AANA fact sheet, 2026). AOC keeps a current list of CRNA supervision opt-out states. Third, confirm what state scope-of-practice law and your medical staff bylaws require. An opt-out removes only the federal condition.

The real economics: a modelled comparison

The company model looks attractive when collections are strong. Look at it again when your payer mix weakens. The table below is modelled, not client data. It shows the same hypothetical four-room ASC under two payer-mix cases.

Assumptions (all modelled): fully loaded cost to staff the rooms is $3.0M a year, covering clinician pay, benefits, malpractice and billing. Under the company model, the company pays the group that same $3.0M as a fair-market-value rate and spends another $0.2M on billing, credentialing, insurance, compliance and management. Net professional collections are $3.4M in the strong case and $2.7M in the weak case. Payer contracts and case volume do not change between models.

Two points follow. First, the company model does not remove the subsidy. It moves the whole collections risk, plus the added overhead, onto the owners. In this model a $0.3M stipend becomes a $0.5M loss. Second, the owners' return depends on case volume they control. That is the link the OIG examined. If the plan only works because owners keep more of the fee on cases they refer, have counsel review it before you go further.

If you stay with a contracted group, test the stipend against the group's actual staffing and collections, not against the last renewal. AOC's stipend and contract review does this. Our guide to clauses to check in an anesthesia services agreement covers the contract terms.

What to check before you choose or renew

• Compliance review. Have healthcare counsel review the structure against the federal anti-kickback statute, Advisory Opinion 12-06 and state law. A written fair market value opinion on what the company pays clinicians helps, but it does not by itself protect the owners' profit.
• Payer contracts. A new anesthesia company needs its own payer contracts. Find out whether it can match the rates the current group holds. If it cannot, model the weaker rates, not today's.
• Credentialing and enrollment. Allow time for Medicare, Medicaid and commercial enrollment. Plan how cases will be billed during the gap.
• Coverage and call. Confirm who covers vacations, illness, late cases and add-ons, and what happens if the subcontracted group gives notice. Ask for an exit clause and a transition plan in writing.
• Supervision and scope. Confirm the CRNA supervision rule under 42 CFR 416.42 and whether your state's opt-out covers surgery centers. Make sure surgeons understand the supervisory role they take on.
• Quality. Agree on measures you will track, such as on-time starts, PACU length of stay, unplanned transfers and patient complaints. Report them at least quarterly.
• The real economics. Model at least one weak payer-mix case. Include billing, malpractice, compliance and management costs. Compare the result with a stipend benchmarked to actual staffing.
• Transparency. Exchange case volume, collections and staffing data in both directions. One anesthesia leader quoted by Becker's called "transparency in both directions" the proven component of success in contracted coverage.

Sources

• HHS Office of Inspector General, Advisory Opinion 12-06 (issued May 25, 2012)
• 42 CFR 416.42, ASC Conditions for Coverage: surgical services
• 42 CFR 1001.952, anti-kickback statute safe harbors
• American Association of Nurse Anesthesiology, Fact Sheet Concerning State Opt-Outs (2026)
• Mark F. Weiss, "An Update on the 'Company Model' and Other Anesthesia Kickback Schemes," Anesthesia Business Consultants (Winter 2019)
• Becker's ASC: The anesthesia market has changed, here's how ASCs can catch up (November 10, 2025)
• Becker's ASC: The era of free anesthesia coverage is over (July 10, 2026)
• Becker's ASC: Why some ASCs are buying their own anesthesia groups (August 18, 2026)
• Becker's ASC: 5 ASC anesthesia models, compared (October 7, 2026)

AOC is a fixed-fee advisor. We place no clinicians, do no billing and take no share of savings. We show our workings so the center and the anesthesia group can both check them. If you are weighing a company model, a stipend renewal or a move to employment, we can benchmark your current arrangement against your real staffing, collections and payer mix before you commit. Your counsel handles the legal review; we handle the numbers. Book 15 minutes with Andrew Woodmancey, or request a benchmark review.