OIG Releases New Fraud and Abuse Advisory Opinion Involving EHR Data Exchange
On December 7, 2011, the Office of the Inspector General (OIG) released an Advisory Opinion regarding a proposed coordination service to facilitate the electronic exchange of data for patient referral purposes. A health IT company requested the opinion to determine whether its proposed services would be subject to OIG sanctions or civil monetary penalties (CMP) under the Anti-kickback Statute (AKS). The AKS makes it a criminal offense to knowingly and willfully offer, pay, solicit or receive any remuneration to induce or reward referrals of items or services which are reimburseable by a Federal health care program.
Three types of services were offered by the health IT company: billing services, electronic health record (EHR) management services, and automated messaging services for communicating with patients. These services could be purchased as a package deal or on a monthly basis for a subscription fee. The Proposed Arrangement, however, would provide a new service that would provide coordination services for referrals and managing patients receiving services from other health care professionals (the "Coordination Service").
Through the Coordination Service, a trading partner could send referrals as well as all necessary medical records in addition to insurance and billing information. The patient information would be accessed and exchanged through an electronic database network. Although purchase of the EHR services offered by the health IT company was required in purchasing the Coordination Services because of the need for all patient medical, demographic and other information contained within to be available for referral purposes, the Proposed Arrangement would offer a discount on a monthly EHR subscription fee of approximately 25-35%. Other transmission, functionality and service fees would be assessed, depending upon the complexity of the services performed and per referral.
Although the Proposed Arrangement did not fit into an AKS Safe Harbor, the OIG determined it would not impose administrative sanctions upon the health IT company if it proceeded with offering the Coordination Services. Although health care professionals were paying fees in connection with the receipt and transmission of referrals, these did not result in enhanced access to a referral stream. Health care professionals also were not required to enter into an agreement with the health IT company or purchase the Coordination Service in order to receive a referral through the network.
In addition, the fees reflected the fair market value of the services provided and were based upon the level of services that were provided, as well as assessed regardless of whether a patient followed through on a referral and actually received the referred services, therefore distinguished from traditional per-click success fees. The Opinion stated that the independent value provided by the services which were actually paid for was unrelated to inducing referrals, and fees charged,
would not vary based on the value of the items or services that a receiving health professional might ultimately provide to Federal health care program beneficiaries.
OIG Advisory Opinions may only be legally relied upon by the party requesting the opinion but can prove useful guidance to other entities in structuring arrangements to comply with the Anti-kickback Statute. You can read the full Advisory Opinion here. CMS also issues Advisory Opinions pursuant to its authority under the Stark physician self-referral laws.
