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On December 28, 2023, the Office of Inspector General (“OIG”) issued a favorable advisory opinion (No. 23-15) (the “Opinion”) to a willing consulting vendor (“Requester”). has been published. In exchange for referring a client’s practice optimization services (workflow and performance evaluation, data analysis, specific Medicare eligibility and performance assistance, etc.) to a physician’s practice, we will offer him a gift card of up to $75. Masu. Among other things, the claimant (i) did not provide its customers with services eligible for reimbursement under federal health care programs; and (ii) claimed no ownership interest in or claims to any entity that provided the items or services. I didn’t have investment rights. services paid for by federal health care programs, and (iii) received compensation from the physician’s practice that does not vary depending on whether the physician’s practice received more or less reimbursement from Medicare based on the applicant’s services. This opinion states that this proposed arrangement is prohibited under Section 1128B(b) of the Social Security Act (the “Act”), also known as the federal Anti-Kickback Act (the “Anti-Kickback Act”). We conclude that it does not give rise to compensation. OIG will not impose administrative sanctions against claimants under section 1128A(a)(7) (Exemptions) or 1128(b)(7) (Civil Penalties) of the Act. As always, this opinion provides that Complainant can rely only on the specific facts presented to her OIG and that certain state and federal laws may continue to restrict similar arrangements. doing. However, this opinion indicates that while the range of possible marketing options for physician practice vendors is narrow, it may be slightly broader for physicians similarly situated as Complainant.
1. What is the relationship between the facts applicable to the complainant and the physician’s practice?
The OIG provided Complainant with operational optimization consulting services (i.e., workflow assessments, data analysis, electronic medical record consulting, compliance monitoring, biannual Medicare Merit-Based Incentive Payment System (“MIPS”)) for the physician’s practice. Eligibility testing, annual MIPS, etc.). – related training, auditing of MIPS-related performance measurements, and support for MIPS data submission). In the proposed arrangement, OIG considered three potential compensation streams: (i) Claimant’s practice clients paid for Claimant’s consulting services; (ii) a client of the applicant’s practice may have received a higher MIPS reimbursement for her from Medicare in connection with those services; (iii) Claimant offers to provide her $25 gift card to existing physician practice customers who recommend Claimant’s services to other physician practices, and in addition, if the referral is successful; offered an additional $50 gift card.
Complainant established four material facts about herself to the OIG in seeking an opinion. (i) Claimant is a Federal Health Care Program (“FHCP”); (ii) all or any portion of Claimant’s services are not paid, directly or indirectly, by her FHCP; (iii) Claimant shall not provide any items or services other than this Referral Agreement that may be paid, in whole or in part, directly or indirectly by FHCP; and (iv) Claimant shall not have any ownership or investment in the have no rights. An entity that provides items or services that are paid, directly or indirectly, in whole or in part by FHCP.
2. How did the OIG interpret the facts to get a favorable opinion here?
The opinion determines that three potential compensation streams in Complainant’s referral arrangement are not relevant to the anti-kickback statute and, therefore, Complainant believes that the service does not and will continue to use FHCP funds. Because of the evidence of non-recommendation, OIG determined not to impose administrative sanctions. Under the referral agreement he shall be reimbursed with FHCP funds. Specifically, the OIG reasoned that:
- First, gift cards provided to customers are not in return for referrals of services that are reimbursed by FHCP (i.e., the requester does not endorse or provide the items or services paid for through FHCP, and the requester does not own or own the items or services paid for through FHCP. or ownership of the property). investment interests in companies that receive payments from FHCP).
- Second, the claimant does not recommend the purchase, lease, or order of any item or service for which payment is made under the FHCP (i.e., the payments the claimant receives from the practice’s customers are not subject to anti-kickback statutes). ). ; and
- Third, although an applicant’s consulting services may result in higher Medicare MIPS reimbursement for a physician’s office client, the compensation the client receives under the proposed arrangement will not be paid under the FHCP. This is not compensation for introducing products or services.
3. How should practitioner vendors evaluate their marketing potential now?
OIG advisory opinions are limited in scope to the specific facts outlined by a particular requester and can only be relied upon by a particular requester, but interested parties may You can use it to inform your thoughts about what you want or don’t want to do. Given how he views the OIG regarding the various arrangements that requesters present from time to time. This opinion states that under federal law, there is a gap between receipt of compensation for the provision of services that may cause an increase in a customer’s FHCP reimbursement and receipt of actual compensation for the recommendation of a service or item paid for by FHCP. We emphasize that there may be a distinction below. By circumventing the anti-kickback statute’s technical prohibitions, Complainant was able to get her OIG to approve the proposed arrangement. However, OIG may have reached an adverse finding if the applicant’s arrangement directly or indirectly resulted in compensation for referrals to providers of services reimbursable under the FHCP.
Physician practice vendors similarly positioned as this claimant in the opinion consider whether to adopt or expand existing referral reward programs and whether to seek an advisory opinion from the OIG itself on the specific incentives to be paid. There is a possibility. To clients that are FHCP-registered providers or suppliers. When considering potential marketing ideas to customers participating in the FHCP, vendors should also consider applicable state laws. Each state may also have similar anti-kickback laws. For example, New York state law provides criminal liability for the receipt, offer, or payment of payment for the referral of goods or services reimbursed by the state health care program.[1] Similarly, California law provides criminal liability for health care professionals who offer, provide, or receive compensation for patients, customers, or customer referrals.[2] This means that marketing activities that are permitted under federal or other state law may still be prohibited elsewhere. Thoroughly consider new possibilities under all applicable laws before changing your marketing strategy, considering that unacceptable relationships can result in significant federal and state penalties. It’s worth it.
footnote
[1] New York Soccer Serve. Law § 366-d(2).
[2] Cal. bus. See also Prog Professor Code §650; Cal. Welf. Laboratory Code §14107.2(a)-(b).
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