The Department of Health and Human Services' Office of Inspector General has terminated its own 2011 advisory opinion regarding financial incentives for referrals from health professionals to an online service that facilitates the exchange of information between healthcare providers and suppliers.

Though a 2011 advisory opinion concluded that the proposed online service "could potentially generate prohibited remuneration under the federal anti-kickback statute if the requisite intent to induce or reward referrals of federal healthcare program business were present," OIG decided at the time not to impose administrative sanctions on the unnamed requestor for the then-proposed arrangement. 

However, OIG has now reconsidered its previous conclusion that the arrangement’s fee structure "would be unlikely to influence an ordering health professional’s referral decisions in a material way." Under the arrangement, ordering health professionals who purchase the "coordination service package" receive a discount on their monthly EHR service subscription fees. And, each time an ordering health professional uses the coordination service to make a referral to a non-trading partner, the discount is reduced by an amount equal to or less than $1.00, until it disappears entirely.

Gregory Demske, OIG's chief counsel, in a redacted letter states that the office now concludes that "the financial incentive provided to ordering health professionals under the arrangement could induce the ordering health professionals to select trading partners rather than non-trading partners, particularly with respect to services the ordering health professionals order with a high degree of frequency, such as laboratory tests."

In the letter, Demske writes that OIG "continues to believe that the efficient exchange of health information between health professionals is a laudable goal." Nevertheless, "when evaluating an advisory opinion request regarding an exchange that involves referrals of federal healthcare program business, the OIG also must consider whether the means used to achieve that goal present more than a minimal risk of fraud and abuse under the anti-kickback statute," he states.

Any definitive conclusion regarding the existence of an anti-kickback violation "requires a determination of the parties’ intent," which is "beyond the scope of the advisory opinion process and this final notice," Demske added.

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