OIG Reverses 2011 Ruling, Compelling athenahealth to Change Fee Plan

HHS's Office of the Inspector General has reversed its own 2011 decision, ruling athenahealth's model of charging its clients a fee for exchanging information with laboratories or other organizations that are "out-of-network" could lead to anti-kickback violations.

In 2011, athenahealth solicited a ruling from the OIG about a new service that would allow its customers to exchange data directly with service providers with the goal of improving care coordination. When a physician using athenahealth wanted to make a referral to a laboratory, pharmacy, imaging provider or other entity, the physician would be able to access athenahealth's "network" of providers and use the HIE interface to electronically transfer patient information.

To further populate its network, athenahealth offered organizations interested in receiving referrals through the network the opportunity to enter into an agreement with athenahealth by which the organization could customize its listing in the network and receive more comprehensive patient information with the electronic transmission.

There was no charge for laboratories or other organizations to be included in the athenahealth network, and its physician electronic health record clients received a discount if they used the HIE service as well.

However, athenahealth assessed a fee (in all cases, $1 or less) for each data transmission. Who paid the fee varied depending on whether the receiving organization was part of the athenahealth network — if it was, then the receiving organization would pay the fee, if it wasn't, then the referring physician would be charged for sending data to an "out-of-network" organization.

In the 2011 opinion, the OIG stated this service had minimal risk for fraud or abuse. Now, in the termination of the previous decision, the OIG states: "The Arrangement implicates the anti-kickback statute because Referring Physicians are relieved of a financial obligation when they refer laboratory test orders to [the unnamed laboratory that requested the review]… we conclude that the Arrangement poses more than a minimal risk of fraud and abuse."

Ed Park, athenahealth's COO, expressed the company's disappointment over the OIG's reversal. In a statement, he drew a comparison to other industries where out-of-network fees are both accepted and helped fuel the adoption of certain services: "For example, in the ATM industry, you don't pay an ATM fee for in-network ATMs, but you pay a fee for out-of-network ATMs. In the long distance industry, receivers pay for 1-800 long distance calls. Allowing for either side to pay the communications fee has fueled widespread adoption of these basic transactions."

He said the athenahealth fee, which is less than an ATM fee, helps to distribute the cost of health information exchange more fairly and would lead to more organizations sharing information, ultimately improving patient care.

"The OIG's walk-back is a setback for any patient who has ever been turned away from a doctor's office because their referral paperwork hasn't been received, or handed a clipboard to provide information that a practice should already have had," he said. "And it's a setback for one of the few bipartisan objectives of health reform: care coordination."

Going forward, athenahealth will change referring physicians the $1 transaction fee for all referral messages.

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