OIG Looks Unfavorably on EHR Fee Arrangements Involving Labs

Laboratories that work directly with physician offices for the electronic exchange of test orders and results but that do not charge the physicians for the service will not be affected by a recent advisory opinion (AO) from the Health and Human Services Office of Inspector General (OIG). Opinion 14-03, issued April 1, concludes that certain fee arrangements between labs and EHR service providers could potentially violate the anti-kickback law. The AO concerns the kind of information exchanges using electronic health record (EHR) vendors where the laboratory pays a fee to the vendor for each test order transmitted to the laboratory. The fees decrease as the volume of referrals increases. The new AO addresses similar issues raised in a prior opinion (11–18), which the OIG rescinded April 1. Previously, the OIG had issued a favorable opinion on proposed fee discounts. However, the OIG now says that such arrangements potentially generate prohibited remuneration under the anti-kickback statute. The arrangements described in these AOs include some kind of connection between the physician practice, the vendor, and the laboratory where the vendor, as the middle entity, charges a fee to both or either party in exchange for using the service. The laboratory in the arrangement would be designated as an in-network laboratory and would have the availability of a bidirectional interface between its computer and the office EHR. The laboratory would pay a fee to the vendor in exchange for that designation and the service. The laboratory indicated in the request for an opinion that it has the ability to provide the service on its own but that in order to receive the in-network designation it had to participate. The requestor said it believes that the physician practice does not have to pay any fee when using an in-network laboratory or that the fees decrease as volume increases. The requestor also stated that some practices indicated they might change to another laboratory designated as in-network if the lab refused to participate in the arrangement. The OIG found fault with the arrangement in three main areas:

1. The physicians previously had the ability to order and receive results electronically from the requestor laboratory without a fee. Under this arrangement, they now must pay a fee to the vendor if they use an out-of-network lab. The choice of paying a fee or not paying a fee may influence their referrals.
2. The fee structure itself could influence referrals because the more tests they order, the less they pay.
3. There appears to be no other reason for the requestor to pay fees to the vendor except as a means to secure referrals.

Any laboratory participating willingly in such an arrangement may find itself in trouble with the OIG since the issuance of this AO. The vendor may also have a problem if it is using the arrangement to direct referrals in exchange for participation in its network. Takeaway: Laboratories should end any similar arrangements with an EHR vendor or any physician practice that uses such an arrangement to coerce a laboratory to participate in a program where the physician receives a benefit in exchange for referrals of laboratory services.