Variable Compensation: Is the Glass Half Full or Half Empty: Per Use Compensation Risk Confirmed, But Not Absolute
By Philip B. Young & Joy M. Harris
The Advisory Opinion can be read as a condemnation of virtually all variable compensation under the Anti-Kickback Statute. It can also be read as no more than a narrow opinion involving per-use compensation. This mixed message perpetuates the longstanding uncertainty surrounding variable compensation arrangements and will prompt some to ask whether it sounds the death knell for variable is no it is still too early to reach that conclusion.