In OIG Advisory Opinion No. 11-12, a nationally ranked tertiary hospital proposes to establish a telemedicine program for neuro-emergency clinical protocols and consultations for stroke victims and to provide this program without cost to existing affiliated community hospitals. Since a key component of the program would be the provision of hardware, software and communications applications (Tele-Stroke Applications), the hospital has requested an advisory opinion from OIG pursuant to which the OIG would decline to prosecute this arrangement as a violation of the Anti-Kickback statutes.
Although the OIG opined that the arrangement would not fit within an existing safe harbor because the service components would not fit within the specific requirements of the personal services and management contract safe harbor, the OIG nonetheless concluded that it would not prosecute this arrangement as an Anti-Kickback violation because it is not viewed as an offer of something of value, i.e. the Tele-Stroke Application, in exchange for referrals for the following reasons:
1. The program is neither a reward for prior referral arrangements nor conditioned upon future arrangements, and, in fact, the objective of the program is to reduce transfers from community hospitals to the requesting hospital by enabling treatments at the community site.
2. The proposed arrangement is intended to be offered initially only to hospitals with preexisting affiliations, but the requesting hospital has affirmed that any offer to additional hospitals in the future would not be conditioned upon referral relationships.
3. The OIG concluded that the parties that would most benefit from the arrangement would be patients and that the program could actually reduce the volume of services billed to Medicare by timely and appropriate treatment at the community hospitals and is therefore unlikely to result in increased cost to the federal health care programs.
In conclusion, OGI concluded that the proposed arrangement appears to contain sufficient safeguards to reduce risks that would result in improper payments for referrals for a federal health care program business for the requesting hospital.
