Contributed by Lee Kim, Esq.
The Office of Inspector General of the Department of Health and Human Services has issued an advisory opinion regarding a hospital’s proposal to provide free acces to an electronic interface to community physicians and physician practices (who request it) so that the physicians and practices can transmit orders for certain services to and receive the results from the hospital. Specifically, physicians could use the interface to transmit to the hospital orders for laboratory and diagnostic services to be perofmred by the hospital and to receive the results of those services. In addition, the hospital would provide, through a contractor, support services necessary to maintain the interface, including software updates. The physicians who choose to particiapte would be responsible for maintaing all aspects of their EHR system.
The anti-kickback statute is not implicated if remuneration is not offered, paid, solicited, or received according to the OIG. The OIG reasoned that the free access to the interface and the related support services as provided by the hospital would not constitute remuneration to the participating physicians under the anti-kickback statute.
OIG advisory opinion: https://oig.hhs.gov/fraud/docs/advisoryopinions/2012/AdvOpn12-20.pdf