OIG: Exclusive agreements between labs, physicians could count as kickbacks

An advisory opinion released last week by the U.S. Department of Health and Human Services Office of Inspector General (OIG) advises labs not to enter exclusive agreements with physician practices that would cover patient fees for certain insurance plans. This type of agreement could violate anti-kickback laws and lead to an investigation and possibly administrative sanctions.

The OIG responded to a request from a "multi-regional medical laboratory that provides clinical laboratory, anatomic pathology, and forensic pathology services" that owns 45 patient service centers in multiple states. According to the laboratory, physician practices expressed a desire to work with a single laboratory; however, certain exclusive insurance plans require patients to use a specific laboratory for testing. The laboratory agreed to waive the fees for those patients, allowing physicians to use a single laboratory for all of their tests.

The OIG argued that agreement could violate federal anti-kickback statutes that bar providers from paying, soliciting or receiving any remuneration to induce or reward referrals. Although the laboratory indicated that physicians would receive no financial benefit from the agreement, the OIG said that, because some EHR vendors charge a monthly maintenance fee, relieving physicians of that payment could be considered a kickback. Additionally, allowing physicians to work with one laboratory could reduce administrative and financial burdens that could be considered in violation of the law.

In a blog post, attorneys from Mintz Levin say the reasoning behind this advisory opinion is "difficult to comprehend," since the OIG's basis for defining kickbacks under this agreements relies on "intangible, non-quantifiable benefits" and the "presumption that physician practices had other interfaces that resulted in charges for monthly maintenance fees, which may or may not be the case."

Laboratories have been a point of emphasis for the OIG. Last year, the agency released a report indicating that Medicare claims for clinical laboratory services rose 29 percent between 2005 and 2010, FierceHealthPayer: AntiFraud previously reported. Recently, Health Diagnostic Laboratory was reportedly on the verge of a $47 million settlement with the government for paying physicians $20 for each blood sample--a practice HDL says is common among its competitors.

A special fraud alert issued by OIG last June warned that these types of payments to physicians are considered kickbacks.

For more:
- here's the OIG advisory opinion
- read the Mintz Levin blog post