A Timely Refresh on Ambulatory Surgery Centers and the Federal Anti-Kickback Statute

On March 4, 2026, the Office of Inspector General (“OIG”) issued Advisory Opinion No. 26-04 relating to investments in and transfers of ownership interests in an ambulatory surgery center (“ASC”). While most experienced health care administrators understand that the federal Anti-Kickback Statute (“AKS”) applies to ASC arrangements, many do not realize two distinct aspects of each ASC investment are subject to AKS risk. Advisory Opinion No. 26-04 serves as a useful reminder of both risk points and offers helpful clarification for succession planning and other transactional strategies involving physician investors.

According to the opinion, a single-specialty ASC was wholly owned by one practicing physician. The physician’s two children were also practicing physicians in the same specialty. As part of a succession planning strategy, the physician sought to transfer ownership interests in the ASC to his spouse and children and to make ownership interests available to certain outside physician investors. The proposed transfers were structured in three phases:

• Phase 1 – The physician would gift a minority percentage of ownership interests to his spouse and simultaneously offer a small number of ownership interests to his physician children for purchase at fair market value.
• Phase 2 – Subject to approval by the ASC’s board, a limited number of ownership interests would be offered for purchase by outside physician investors at fair market value. At that point, the physician would transition into retirement and cease the active practice of medicine.
• Phase 3 – Upon the deaths of the physician and his spouse, their remaining ownership interests would be gifted to the two physician children.

The OIG emphasized that each phase of the transition constitutes a separate transaction for purposes of AKS analysis. Based on the totality of the facts and circumstances presented, the OIG concluded that it would not impose administrative sanctions. Notably, however, the OIG specifically identified two elements implicated in each phase: (i) the return on investment to the ASC investors and (ii) the transfer of ownership interests themselves.

In all three phases, the OIG determined that the return on investment satisfied the ASC safe harbor under the AKS, based on certifications provided by the requesting party. Importantly, however, the ASC safe harbor protects only the return on investment and does not extend to the underlying transactions by which ownership interests are transferred.

With respect to the sales and gifts of ownership interests, the OIG found that although the transfers did not qualify for safe harbor protection, the sales of interests at fair market value to the physician’s practicing children presented a sufficiently low risk of fraud and abuse. This conclusion was supported by the use of a qualified, independent appraiser to establish fair market value.

The OIG also evaluated the gifting of ownership interests to the physician’s spouse in Phase 1 and to the physician children in Phase 3. In both cases, the OIG concluded that the gifts posed a sufficiently low risk of fraud and abuse where they were made pursuant to a bona fide succession and estate planning strategy. The spouse was not in a position to make or influence referrals to the ASC, and with respect to the physician children, the OIG relied on the estate planning context as evidence that the transfers were not intended to induce or reward referrals.

While Advisory Opinion No. 26-04 does not represent a shift in OIG policy, it provides an important reminder that ASC arrangements must account for both the structure of the investment returns and the mechanisms by which ownership interests are transferred. These components are analyzed separately under the AKS, and ownership transfers frequently fall outside available safe harbors.