In OIG Advisory Opinion No. 11-17, the OIG has broadcast its suspicion of percentage based marketing arrangements.

The request seeks the OIG’s “no action” letter on a proposal by which a company will provide consulting and marketing services to physician practices. The services would be designed to review patients’ files and identify opportunities to provide allergy testing and immunotherapy laboratory services. 

The OIG declined to issue a letter stating that it did not identify potential violations of the Anti-Kickback Statute and declined to prosecute. 

Federal courts have previously concluded in Nursing Home Consultants vs. Health Services and Modern Medical Laboratories vs. SmithKline that percentage-based marketing arrangements were suspicious. 

I would suggest that the key issue here is that the service would be one in which the management company would review files and identify potential patients to receive covered services, which should be distinguished from situations in which the physicians identify the patients through the customary practice of medicine and the management or consulting services are provided merely to assist the physician in providing previously identified services or products.

You should also note that the OIG declined to provide any opinion regarding the fact that this process would review protected health information, and constitute a HIPAA violation. Obviously, any situation like this would require a HIPAA complaint business associate agreement.