This favorable OIG opinion relates to Requestor who provides consulting services to physician practices and the Requestor’s proposed arrangement (“Proposed Arrangement”) to offer its current physician practice customers certain gift cards for referring potential new physician practice customers. OIG concludes the Proposed Arrangement would not generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”). OIG will not impose administrative sanctions on Requestor in connection with the Proposed Arrangement.
A high-level summary of the Proposed Arrangement (more specific details appear in the Opinion) follows:
(i) Requestor provides consulting services to physician practices. The services include:
- uncovering workflow issues,
- data analytics services,
- electronic health record consulting services,
- compliance monitoring services,
- bi-annual Medicare Merit-Based Incentive Payment System (“MIPS”) eligibility checks,
- annual MIPS-related training,
- auditing MIPS-related performance measures
- assistance with submitting MIPS data.
(ii) Requestor acknowledges that some services could result in customers receiving higher MIPS reimbursements from Medicare, but Requestor certified that it does not advise its customers to take any action, or otherwise promote any activity that would violate applicable billing or other rules or regulations.
(iii) Requestor certified that its fees for the services are unrelated to whether a customer receives a greater or lesser reimbursement as a result of the Requestor’s services.
(iv) The Proposed Arrangement involves the Requestor giving a $25 gift card/recommendation to its current customers who recommend Requestor’s services to prospective physician practice customers. If the recommendation is successful (i.e., recommendation results in a new customer for Requestor), the Requestor would give the customer making the recommendation another $50 gift card.
(v) Requestor certified that it does not recommend to any customer the purchasing, leasing or ordering of any item or service for which payment may be made, in whole or in part, under a federal health care program. Requestor also certified:
- none of Requestor’s services are or would be paid for, in whole or in part, directly or indirectly, by a federal health care program,
- Requestor would not provide any items or services outside of the Proposed Arrangement that may be paid for, in whole or in part, directly or indirectly, by a federal health care program,
- Requestor does not have an ownership or investment interest in any other entity that provides items or services that are paid for, in whole or in part, directly or indirectly, by a federal health care program.
The full text of Advisory Opinion 23-15 includes a statement of the facts considered by the Office of Inspector General.
It is our view that OIG’s conclusion is based upon the existence of all the factors in the Proposed Arrangement. We expect that a different conclusion may be reached by OIG if one or more of those factors did not exist.
The following summarizes OIG’s legal analysis:
The Proposed Arrangement involves three potential streams of remuneration:
- Requestor issuing gift cards to physician practice customers who recommend potential physician practice customers to Requestor,
- physician practice customers would pay Requestor for consulting services, and
- physician practice customers potentially would receive an opportunity to earn a fee as a result of the consulting services in the form of higher MIPS reimbursements from Medicare.
OIG concludes that the Proposed Arrangement does not implicate the AKS. OIG addresses each of the three payment streams:
- First stream of remuneration does not implicate the AKS because, based on the Requestor’s certifications, the gift cards provided to Requestor’s customers would not be in return for the physician practices making referrals of, purchasing, arranging for, or recommending services that are reimbursable in whole or in part by a federal health care program.
- The second and third streams of remuneration do not implicate the AKS because the Requestor receives payments from physician practice customers for providing consulting services to those customers and Requestor certified that it does not recommend to any customer the purchase, lease, ordering of any item or service for which payment may be made, in whole or in part, under a federal health care program.
- Additionally, the consulting services might result in higher MIPS-related payments from Medicare, giving Requestor’s customers the opportunity to earn a fee, but any remuneration those customers receive under the Proposed Arrangement would not be in return for referrals for the purchase of, or arranging for, or recommending the purchase of, any item or service for which payment may be made in whole or in part under a federal health care program.
OIG Advisory Opinions are very fact specific and, by their terms, limited to the facts presented by the specific Requestors, and are subject to specific limitations set out in the Advisory Opinions. The above is a high-level summary and consultation with counsel is recommended for a fuller review and discussion of the Advisory Opinion.
Should you need anything else on this topic or if you have a matter that you wish to pursue with the Department of Health and Human Services’ Office of Inspector General for an Advisory Opinion, please feel free to reach out to Matthew Babcock at firstname.lastname@example.org to discuss an engagement.
This alert is not a substitute for advice of counsel on specific legal issues.
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