The Health and Human Services Office of Inspector General (OIG) has given the green light to a proposed arrangement whereby a hospital would provide physicians with free access to an electronic interface for sending lab and diagnostic test orders to the hospital and receiving the results. In Advisory Opinion 12-20, released Dec. 19, the OIG said the arrangement would not generate prohibited remuneration under the anti-kickback statute (42 U.S.C. §1320a-7b(a)) or lead to administrative sanctions under its exclusionary authority or provisions governing the imposition of civil money penalties. Facts Presented to the OIG The party that sought the OIG’s opinion is a hospital operated by a county government and located in a health professional shortage area. It would provide free access to an electronic interface to community physicians and physician practices that request it. The physicians could use the interface to transmit to the hospital orders for laboratory and diagnostic services to be performed by the hospital and to receive the results of those services. In addition, the hospital would provide, through a contractor, support services necessary to maintain the interface, including software updates. The physicians who chose to participate in the arrangement would remain responsible for all aspects (e.g., […]
The Health and Human Services Office of Inspector General (OIG) has given the green light to a proposed arrangement whereby a hospital would provide physicians with free access to an electronic interface for sending lab and diagnostic test orders to the hospital and receiving the results.
In Advisory Opinion 12-20, released Dec. 19, the OIG said the arrangement would not generate prohibited remuneration under the anti-kickback statute (42 U.S.C. §1320a-7b(a)) or lead to administrative sanctions under its exclusionary authority or provisions governing the imposition of civil money penalties.
Facts Presented to the OIG
The party that sought the OIG’s opinion is a hospital operated by a county government and located in a health professional shortage area. It would provide free access to an electronic interface to community physicians and physician practices that request it. The physicians could use the interface to transmit to the hospital orders for laboratory and diagnostic services to be performed by the hospital and to receive the results of those services.
In addition, the hospital would provide, through a contractor, support services necessary to maintain the interface, including software updates. The physicians who chose to participate in the arrangement would remain responsible for all aspects (e.g., acquiring, installing, and maintaining) of their own electronic health records system, including all necessary hardware and connectivity services, that would allow them to communicate with the hospital through the interface. The hospital certified that the interface would serve no purpose other than to transmit the orders and results.
Legal Analysis
The OIG said the arrangement would not violate the anti-kickback statute because it would not provide remuneration to the participating physicians. In light of the facts presented, the OIG concluded, “interface access would be integrally related to the hospital’s services, such that the free access would have no independent value to the physicians apart from the services the hospital provides. Accordingly, we conclude that the proposed arrangement would not implicate the anti-kickback statute.”
If physicians were able to use the free interface for additional functions beyond transmitting test orders, then the free interface would have an independent value and could be an illegal inducement prohibited under the anti-kickback statute, the OIG cautioned.
The advisory opinion is posted at oig.hhs.gov. It applies only to the party requesting it and is based on information the party provided. It has no application to, and cannot be relied upon by, any other individual or entity.
