On December 12, 2012, the Office of the Inspector General (OIG) issued OIG Advisory Opinion 12-20. This opinion was based upon a request by a hospital regarding the implications under the Medicare and Medicaid anti-kickback law if the hospital provides free access to an electronic interface to community physicians and practices. The hospital would offer free access to the interface which would be utilized by the physicians to order laboratory and diagnostic services performed by the hospital, and to receive the results of those services. In addition, the hospital would provide support services necessary to maintain the interface, including software updates. The physicians would remain responsible for their own electronic health records systems, but would be able to utilize the interface for the sole purpose to transmit orders and receive results of laboratory and other diagnostic testing.
Based upon these limited facts, the OIG determined that the interface would be integrally related to the hospital’s services, such that the free access “would have no independent value to the physicians, apart from the services [hospital] provides.” The OIG concluded that accordingly, the proposed arrangement would not implicate the anti-kickback law. It is also worthy to note that the OIG explained its determination in this opinion would be a contemporary analogue to the limited use computer described in guidance issued by the OIG in 1991. Pursuant to this earlier guidance, the OIG had determined a laboratory could provide a free computer to a physician as long as the computer was used only to print out the results of testing provided by the laboratory.
This advisory opinion should provide additional compliance comfort to laboratories who have utilized the 1991 guidance as a basis for providing interfaces to their clients for the transmission of test orders and the receipt of results. It is important to note that this advisory opinion is limited to this narrow fact situation.
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Jane Pine Wood
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