As
technology continues to be a pervasive platform for the healthcare industry in
improving patient care, the Office of Inspector General of the Department of
Health and Human Services (“OIG”) posted Advisory Opinion 19-04 which approved
a technology company’s proposal to make visible to federal healthcare program
beneficiaries its online healthcare directory for searching and booking medical
appointments and sponsored advertisements. The company employs a
proprietary algorithm which returns up to 200 results and the users are not
charged any fees or offered anything of value. Those same health
care providers pay flat monthly subscription fees or annual subscription fees,
per-click or per-booking fees, to be listed in the company’s directory and may
choose to pay for sponsored advertisements on the company’s directory and
third-party websites. The OIG concluded that the proposed arrangement
would not violate the anti-kickback or civil monetary penalty provision
statutes for numerous reasons, one of which being the many factors that
influences a user’s ultimate choice of healthcare professionals, and mere
access alone to the company’s website would be unlikely to induce a user to
select a particular provider over another. For the Advisory Opinion,
click here.
At the
same time the OIG issued 19-04, the OIG issued Advisory Opinion 19-05 allowing
a proposal for a community health center (the “Requestor”) to purchase real
estate from a limited liability company (LLC) owned and managed by an excluded
individual. The OIG's
List of Excluded Individuals/Entities (LEIE) consists of individuals and
businesses that have been convicted of offenses in connection with federal
Healthcare programs and, therefore, must be excluded from all Medicare,
Medicaid, and other federal healthcare programs. The OIG
indicated the proposed arrangement would not run afoul of the civil monetary
penalties law because the proposal did not involve the provision of an item or
service for which payment may be made under any federal healthcare
program. Under the Proposed Arrangement, the Requestor would purchase
real estate including a medical clinic already operated by the Requestor from a
company owned and managed by an excluded individual. The Requestor would obtain
an independent appraisal for the real estate and not maintain an ongoing
relationship with the excluded individual after the purchase.
Importantly, the Requestor certified that the purchase would not entail claims
to federal healthcare programs or use federal grant funds. This Opinion
provides important insight into the OIG’s interpretation of the prohibition
against contracting with excluded individuals and its analysis of when real
estate becomes an “item” under the 1128A(a)(6) of the Social Security
Act. For the Advisory Opinion, click here.
Both
opinions contained the traditional disclaimer that the advisory opinion can
only be relied upon by the specific company that requested it, but a recent
proposed regulation, 84 FR 40482-01, that we previously reported on may alter
this longstanding rule. For the proposed regulation, click here.
We send these Alerts to our clients and friends to share our insights on new developments in the law. Nothing in this Update should be relied upon as legal advice in any particular matter. © 2019 Riker Danzig Scherer Hyland & Perretti LLP.
