Patient Referral Website Marketing Anti-Kickback
The Office of Inspector General (OIG) posted an advisory opinion regarding an online coordination service for health care professionals. The Requestor, a company which provides web-based services to physicians, designed this service to facilitate the exchange of information between health care professionals. The Requestor informed that this coordination service is only available to its clients (e.g. physicians) who purchase the EHR service as well. However, any health care professional (providers, suppliers, etc.) may be included in the network free of charge. Clients who utilize both the coordination and EHR services would receive a small monthly discount.
Physicians would use the coordination service to refer patients and transmit their information to other professionals, who may or may not have special agreements with the Requestor (i.e. trading partners vs. non-trading partners). Trading partners would have customized profiles on the Requestor's network and receive referrals in a comprehensive, electronic format. While there is no charge to become a trading partner, the Requestor would charge trading partners fair market value for its services. Non-trading partners would receive "basic demographic and insurance information." The Requestor would not provide extraneous services to non-trading partners nor assess any fee on them. Physicians would receive a discount of $1.00 or less for referring patients to trading partners.
The Requestor was inquiring whether the Proposed Arrangement would violate section 1128(b)(7) or 1128A(a)(7) of the Social Security Act, as those sections relate to section 1128B(b) of the Act, the Federal anti-kickback statute. The anti-kickback statute prohibits healthcare providers from "offering or receiving any remuneration to induce or reward referrals of items or services reimbursable by a Federal health care program." This provision is meant to prevent unscrupulous providers from forming referral arrangements without concern for clinical appropriateness.
Although the Proposed Arrangement could potentially generate prohibited remuneration under the anti-kickback statute, the OIG has no intent to impose sanctions on the Requestor. The OIG determined that for various reasons there is a low risk of abuse of referrals:
1. There is no fee for health care professionals to be included in the Requestor's network.
2. Fees the Requestor charges trading partners are fair market value for services provided.
3. The Requestor would charge the fee whether or not the referred patient receives additional services.
4. The discount for referring patients to trading partners is too small to be coercive.
5. Physicians may request any health professional of their choice to be included in the network.
6. Trading partners do not have better access to referral streams than non-trading partners.
This is an overview of an OIG Advisory Opinion and should not be construed as guidance on any issues including legal, regulatory, and compliance matters.