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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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In an advisory opinion posted on September 11, 2019,[1] the Office of Inspector General of the Department of Health and Human Services (OIG) concluded that a marketing arrangement proposed by a technology company (the “Requester”) presented a low risk of fraud and abuse under the Anti-Kickback Statute.[2]

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The Requester operated a marketplace platform (the “Marketplace”) that allowed users to search for and book medical appointments with health care professionals (“Providers”) based on the user’s criteria, such as geographic area, preferred appointment time and the user’s medical insurance. The Marketplace would then generate up to 200 personalized search results listing health care providers meeting the criteria identified by the user (“Marketplace Results”).

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The Requester proposed charging Providers three types of fees for participating in the Marketplace:

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The OIG noted that the proposed arrangement implicated the Anti-Kickback Statute because, through the scheduling services, the Requester would be “arranging” for the furnishing of federally reimbursable items and services in exchange for the per-booking or per-click fees. In addition, Requester’s display of the Marketplace Results and the Sponsored Results constituted advertising activities meant to induce the use of an item or service which, in some cases, would be reimbursable by a federal health care program. For several reasons, though, the OIG determined the arrangement posed a low risk of fraud and abuse:[3]

In this advisory opinion, the OIG confirmed once again that non-health care professionals, such as technology or software companies, are subject to the Anti-Kickback Statute if they provide advertising or marketing services to health care professionals. Proper safeguards can reduce the risk under the statute, though. While advisory opinions are issued only to the requesting party and may not be relied upon by any other individual or entity, they can be instructive in analyzing proposed business arrangements under the Anti-Kickback Statute.

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Cori R. Haper 937.443.6856 <a href="mailto:Cori.Haper@ThompsonHine.com" target="_self" rel="noopener">Cori.Haper@ThompsonHine.com</a>

Rebeccah C. Raines 937.443.6806 <a href="mailto:Rebeccah.Raines@ThompsonHine.com" target="_self" rel="noopener">Rebeccah.Raines@ThompsonHine.com</a>

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

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[1] OIG Advisory Opinion No. 19-04 (September 10, 2019).

[2] The Anti-Kickback Statute 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, or arrange for or recommend the purchasing or ordering any good or service for which payment may be made in whole or in part under a federal health care program. Section 1128B(b) of the Social Security Act. Where remuneration is paid purposefully to induce or reward referrals of items or services payable by a federal health care program, the Anti-Kickback Statute is violated.

[3] In evaluating marketing or advertising arrangements, the OIG considers a number of factors, such as the amount and structure of the compensation, the identity of the party engaged in the marketing activity, the party’s relationship with its target audience, the nature of the marketing activity, the item or service being marketed, the target population, and any safeguards to prevent fraud and abuse (citing OIG Compliance Program Guidance for Pharmaceutical Manufacturers, 68 Fed. Reg. 23731, 23, 739 (May 5, 2003)).

https://admin.thompsonhine.com/wp-content/uploads/2022/04/Health_Care_Law_Update_-_OIG_Approves_Marketing_Program_Offered_by_Technology_Company_to_Health_Care_Providers.pdf

OIG Approves Marketing Program Offered by Technology Company to Health Care Providers

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