Ambulatory surgery center marketing: referral rules, patient notices and honest claims

An ambulatory surgery center has two audiences, and they need very different marketing. Patients want to know whether their procedure can be done there, whether their insurance is accepted, what it will cost and what the day will look like. Physicians want to know whether the center has the block time, staff and equipment for their cases. Most of the legal risk in ASC marketing sits on the physician side, because the people who send cases to a surgery center are often the same people who own part of it.

This guide covers the federal referral laws as they apply to surgery centers, the investor and ownership disclosures patients must receive, the No Surprises Act notices that apply to ASCs, and the claims that need care in patient-facing marketing. It does not cover physician recruitment deals, investment structures or compensation; those belong with a health care attorney. For referral marketing in general, see our guide to patient and physician referrals. Same-day joint replacement claims are covered in joint replacement marketing.

What counts as an ambulatory surgery center

Under 42 CFR 416.2, Medicare defines an ambulatory surgical center as a distinct entity that operates exclusively to provide surgical services to patients who do not need hospitalization, where the expected duration of services would not exceed 24 hours following an admission. The center must have an agreement with CMS to participate in Medicare as an ASC and meet the conditions in Part 416.

That definition matters for marketing in two ways. First, “Medicare-certified” is a specific status; say it only if the center has that agreement, and say exactly which accreditation or state license it holds rather than a general “fully accredited”. Second, the 24-hour language is about expected duration, so “home the same day” is a claim about your own center’s practice, not something the definition guarantees. If some patients stay longer, the marketing should not say everyone goes home the same day.

The anti-kickback statute is the first filter

42 U.S.C. 1320a-7b(b)(2) makes it a felony to knowingly and willfully offer or pay any remuneration, directly or indirectly, overtly or covertly, in cash or in kind, to induce someone to refer an individual for, or to arrange or recommend, items or services that a federal health care program may pay for. Paragraph (b)(1) covers the other side: soliciting or receiving that remuneration.

For a surgery center, the phrase “in kind” is where marketing ideas tend to go wrong. A center’s marketing to physicians and their offices should not include anything of value tied to sending cases. Ideas we decline to build for that reason:

• Paying for referrals in any form. Per-case fees, gift cards, meals or event tickets for offices that send cases.
• Free services for referring offices. Free marketing, free staff, free websites or free scheduling help offered to physicians because they send cases.
• Referral contests or rankings. Recognition or rewards for the offices that send the most cases.
• Lead purchases for referral sources. Buying patient leads and passing them to physicians in exchange for cases. Our guide to buying patient leads covers why lead deals need legal review.

Marketing aimed at physicians can still describe the center accurately: specialties served, equipment, scheduling, staffing, insurance contracts, location and how case scheduling works. That is information, not a reward.

Physician owners, the safe harbor and what patients must be told

Many surgery centers are partly owned by the surgeons who operate there. The anti-kickback statute would treat returns on that ownership as possible remuneration for referrals, so OIG created a safe harbor for ASC investments at 42 CFR 1001.952(r). It covers four categories: surgeon-owned, single-specialty, multi-specialty and hospital/physician ASCs. Each has its own standards, and an attorney decides whether a given structure fits.

Several of those standards bear directly on marketing:

• Investment offers cannot be tied to referrals. In every category, the terms on which an investment interest is offered must not be related to the previous or expected volume of referrals, services or other business from that investor. Recruitment materials for physician investors should never pitch the investment in terms of the cases a physician will bring.
• Returns follow capital, not cases. Payment to an investor must be directly proportional to the amount of capital invested, including the fair market value of any pre-operational services.
• Patients must be told. The safe harbor applies only if patients referred to the center by an investor are fully informed of the investor’s investment interest.
• No discrimination against program patients. The center and its physician investors must treat patients covered by federal health care programs in a nondiscriminatory manner. Marketing that targets only commercially insured patients, or discourages Medicare patients, sits badly with that standard.

Medicare’s conditions for coverage add a separate disclosure duty. Under 42 CFR 416.50(b), the ASC must disclose in writing, and where applicable provide a list of, the physicians who have a financial interest or ownership in the center. Under 416.50(a), it must give the patient verbal and written notice of patient rights before the procedure, and post the written notice where waiting patients are likely to see it.

A good way to handle this in marketing is to be open about it. A short ownership statement on the website, such as “Some of the physicians who perform procedures here have an ownership interest in the center; we will give you a written list before your procedure”, is consistent with the disclosure the rules require and avoids the impression that ownership is being hidden.

A surgery center is not a hospital, but physicians who own part of a hospital face a separate public disclosure duty for the hospital’s website and advertising. That rule, what counts as advertising and what wording is enough are in our guide to physician-owned hospital disclosure.

The Stark law: where ASC services sit

The physician self-referral law, 42 U.S.C. 1395nn, restricts physician referrals of Medicare patients for designated health services to entities in which the physician or a family member has a financial relationship, unless an exception applies. Under 42 CFR 411.351, designated health services do not include services paid by Medicare as part of a composite rate, and the regulation names ASC services identified at 42 CFR 416.164(a) as an example.

That is why surgery center ownership is usually analyzed mainly under the anti-kickback statute. It is not a blanket answer: services outside the ASC composite rate, such as separately billed lab or imaging, are a separate question. If your center markets imaging or lab services, our guide to imaging center marketing covers how the self-referral law applies to imaging. Ask counsel before marketing any service billed outside the ASC rate.

No Surprises Act points for surgery centers

Patients choose surgery centers partly to control cost, so surprise bills are a real marketing risk. The No Surprises Act regulations name ASCs directly. In 45 CFR 149.30, a health care facility, for non-emergency services, includes an ambulatory surgical center described in section 1833(i)(1)(A) of the Social Security Act.

• Out-of-network clinicians at an in-network center. Under 45 CFR 149.420, a nonparticipating provider at a participating facility generally may not bill the patient more than in-network cost sharing, unless the notice and consent process in that section is followed.
• Notice and consent cannot be used for some services. The same section says notice and consent never applies to ancillary services, including anesthesiology, pathology, radiology and neonatology, items and services from assistant surgeons, hospitalists and intensivists, and diagnostic services such as radiology and laboratory services.
• Timing. Where notice and consent is allowed, the notice must be given at least 72 hours before the service if the appointment was made at least 72 hours ahead, or on the day the appointment is made, and no later than 3 hours before the service, if it was scheduled sooner.
• The website disclosure. 45 CFR 149.430 requires providers and facilities to make a disclosure about patient protections against balance billing publicly available and post it on their public website, if they have one.

For marketing, the practical rule is that an “in network” claim should be precise. If the center is in network with a plan but some clinicians who work there are not, the website should not imply the whole visit is in network. Our guides to the No Surprises Act website disclosure, good faith estimates for self-pay patients and the insurance accepted page cover the details.

Claims in patient-facing marketing

Surgery center ads often compare the center with a hospital: lower cost, lower infection risk, faster recovery, more convenient. Some of these may be true for a given center and procedure, but each one is a claim that needs support.

• Health and safety claims need evidence. The FTC Health Products Compliance Guidance says health-related claims must be supported by competent and reliable scientific evidence. A claim that surgery at your center is safer, or that recovery is faster, needs evidence that applies to your center and the procedures you advertise, not a general statistic about surgery centers.
• Cost claims need to be true for the patient reading them. “Save money compared with a hospital” depends on the patient’s plan, deductible and network. If you advertise self-pay prices, our guide to advertising cash prices covers what the price should include.
• No outcome promises. Avoid “guaranteed results”, “pain-free” or “back to normal in days”. Individual outcomes vary, and promises like these are hard to support for any one patient.
• Patient stories carry the same rules as any practice. A story about a quick recovery is read as typical unless the ad says what patients can generally expect, and using a patient’s story needs a HIPAA authorization. See our guide to patient testimonials.
• Surgeon credentials stated exactly. Board certification, fellowship training and awards should be stated as held. Our guide to top doctor awards and paid badges covers the award side.

What tends to work, inside the rules

1. Procedure pages that answer practical questions. Which procedures are done at the center, how to prepare, what the day looks like, who to call with questions, and what to expect afterward, reviewed by the clinical team. Our guide to healthcare landing pages covers the structure.
2. A clear insurance and cost page. Plans the center is in network with, how anesthesia and other clinicians bill, the balance billing disclosure, and how to get an estimate.
3. An open ownership statement. Short and plain, consistent with the written disclosure patients receive.
4. Accurate listings. A Google Business Profile for the center with correct hours, phone number and category, kept separate from the listings of the physician practices that use it. See our guide to Google Business Profile for doctors.
5. Physician-facing information, not incentives. A page or packet for referring and operating physicians that describes specialties, equipment, scheduling and payer contracts, with nothing of value attached.
6. A phone line that answers pre-procedure questions. Patients call with questions about preparation, timing and cost. Answering them well is marketing in its own right.

Procedure pages carry rules of their own. For hernia repair, including the FDA wording on surgical mesh, the warning signs of a stuck hernia and robotic and recovery claims, see our guide to hernia surgery marketing.

How we help

We help surgery centers and the practices around them with websites, local search and patient inquiry paths built around accurate, plain information. We do not build referral incentive programs, and we do not promise rankings, case volumes or results. Our tools are built with HIPAA in mind, and we confirm in writing what a BAA covers before any patient information flows through a tool; if it is not covered, we do not route patient information through it. See our medical lead generation and medical website design services for how we work.

Sources

• 42 U.S.C. 1320a-7b(b), the federal anti-kickback statute
• eCFR: 42 CFR 1001.952(r), safe harbor for ambulatory surgical centers
• 42 U.S.C. 1395nn, limitation on certain physician referrals
• eCFR: 42 CFR 411.351, definitions (designated health services)
• eCFR: 42 CFR 416.2, ambulatory surgical center definition
• eCFR: 42 CFR 416.50, condition for coverage: patient rights
• eCFR: 45 CFR 149.30, definitions (health care facility)
• eCFR: 45 CFR 149.420, non-emergency services by nonparticipating providers at participating facilities
• eCFR: 45 CFR 149.430, disclosure of patient protections against balance billing
• FTC: Health Products Compliance Guidance (December 2022)

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