OIG Issues Favorable Opinion on Electronic Referral Network Proposal
advisory opinion (pdf) regarding a proposal to provide an online service that would facilitate the exchange of information between healthcare practitioners, providers and suppliers for referrals.
The OIG opinion states that while the proposed arrangement could potentially generate prohibited remuneration under the Anti-Kickback Statute, the OIG would not impose administrative sanctions in connection with the proposed arrangement.
Under the proposed arrangement, the company, which provides web-based business services to physician practices, would offer a new "coordination service" that would allow health professionals to exchange information in relation to patient referrals using data from the company's electronic health record service. This coordination package — the exchange of information and the use of the EHR — is designed to reduce the cost and risk of error associated with manually entering and exchanging referral information. It would allow health professionals who wish to make referrals to perform the following actions:
1. Send the demographic, medical record, insurance and billing information of a patient when the patient is seen by other health professionals.
2. Issue referral reminders.
3. Track communications with other health professionals.
4. Exchange information about orders, order results and healthcare recommendations.
Those who wanted to receive referrals through the service could enter into agreements with the company for free to become "trading partners" and could then customize their network profiles and receive formatted orders.
Only health professionals that pay a monthly fee for the company's electronic health record service could transmit information via the coordination service, but there would be no fee to be included in the network of health professionals interested in receiving a referral. The company would charge transaction-based fees of up to $1 for transmitting a referral; recording and maintaining a trading partner's preferences, facilitating appointment scheduling with the trading partner and providing a "report builder" functionality (the functionality fee); and verifying benefit eligibility and obtaining referral authorization for referrals made to trading partners.
The OIG said while the Anti-Kickback Statue is implicated by the arrangement, the arrangement would adequately reduce the risk that the remuneration it provided could be an improper payment for referrals for the following six reasons:
1. All health professionals in a marketplace could be included in the company's referring network at no cost.
2. The transmission, functionality and service fee would reflect the fair market value of the company's services, which would provide value unrelated to inducing referrals.
3. The transmission, functionality and service fees would be charged regardless of whether the patient receives items or services from the receiving health professional.
4. The fee structure would be unlikely to influence a health professional to refer to a particular person or entity. Although the transmission fee is charged to the ordering health professional for transmitting information to a non-trading partner but not to a trading partner, the risk of this influencing referral decisions is minimal because the transmission fee would be low — equal to or less than $1 — and the aggregate amount of transmission fees would be capped so ordering professionals would never pay more for the coordination service package than they would for the EHR service alone.
5. The coordination service would not limit patient freedom of choice or provider freedom of choice in referrals because ordering health professionals could add the contact information for any health professional they want included in the network.
6. A trading partner's payment of the transmission, functionality and service fees would not provide increased access to a referral stream compared to non-trading partners because both groups would be able to receive and respond to referrals.
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