By Jeffrey H. Brochin, J.D.
A technology company’s proposal to make its online health care directory for searching and booking medical appointments pay-per-click, would not constitute grounds for sanctions under civil monetary penalty provisions.
The HHS Office of Inspector General (OIG) issued an advisory opinion in response to the proposal of a technology company to make visible to federal health care program beneficiaries its online health care directory for searching and booking medical appointments, where healthcare professionals would pay per-click or per-booking fees to be listed in the directory. The OIG indicated that such an arrangement would not constitute grounds for the imposition of civil monetary penalties (OIG Advisory Opinion, No. 19-04, September 5, 2019).
When the AKS applies. The anti-kickback statute (AKS) makes it a criminal offense to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce or reward referrals of items or services reimbursable by a federal health care program. For purposes of the anti-kickback statute, "remuneration" includes the transfer of anything of value, directly or indirectly, overtly or covertly, in cash or in kind, and has been interpreted to cover any arrangement where one purpose of the remuneration is to obtain money for the referral of services or to induce further referrals.
The proposed ‘Marketplace’ arrangement. The requestor, a technology company, submitted a request for an advisory opinion regarding its proposal to make visible to federal health care program beneficiaries: (1) its online healthcare directory for searching and booking medical appointments (the "Marketplace"), where healthcare professionals pay, or would pay, per-click or per-booking fees to be listed in the directory; and (2) sponsored advertisements on its online health care directory and third-party websites, where health care professionals pay, or would pay, per-impression or per-click fees, for such sponsored advertisements (the proposed arrangement). Specifically, the requestor inquired as to whether the proposed arrangement would constitute grounds for the imposition of sanctions under the civil monetary penalty provision prohibiting inducements to beneficiaries, section 1128A(a)(5) of the Social Security Act (SSA), or under the exclusion authority at section 1128(b)(7) of the SSA, or the civil monetary penalty provision at section 1128A(a)(7) of the SSA, as those sections relate to the commission of acts described in section 1128B(b) of the Act, the Federal anti-kickback statute (AKS).
Charging per "impression." The requestor currently charges providers a per-impression advertising fee for sponsored results, with an "impression" being the display of an advertisement that is viewed by a user. When a user views a page on the Marketplace, that viewing constitutes an impression for each advertisement that is displayed on the page. As an alternative to the per-impression advertising fee, the requestor would charge providers in certain states a per-click advertising fee each time a user clicks on a provider’s sponsored result.
The requestor certified that the per-impression advertising fee and the per-click advertising fee would not: (1) exceed fair market value; (2) depend on a user’s insurance status or whether a user books an appointment or becomes a patient of a provider; or (3) vary with the volume or value of items or services any provider furnishes to users.
Requestor not a provider. The OIG noted that the requestor is not a provider or supplier, and that therefore its relationship with the target population under the proposed arrangement was distinguishable from potentially problematic arrangements involving marketing by health care providers and suppliers. In particular, "white coat" marketing by health care professionals, such as physicians, is subject to closer scrutiny, since health care providers and suppliers are in a position of trust and may exert undue influence when recommending health care-related items or services, especially to their own patients. Because the requestor is not a provider or supplier, is not affiliated with any provider listed on the Marketplace, and does not recommend any particular provider to users, this same concern was not present in the proposed arrangement.
No AKS or civil penalty violation. The OIG’s Advisory Opinion ruled that based on the facts certified in the request for an advisory opinion and based on supplemental submissions: (1) the proposed arrangement would not constitute grounds for the imposition of civil monetary penalties under section 1128A(a)(5) of the SSA; and (2) although the proposed arrangement could potentially generate prohibited remuneration under the AKS if the requisite intent to induce or reward referrals of federal health care program business were present, the OIG would not impose administrative sanctions on the requestor under sections 1128(b)(7) or 1128A(a)(7) of the SS in connection with the proposed arrangement.
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