OIG reverses course on referral arrangement involving EHR data exchange

Editor's Note: This story has been updated to include the name of the vendor, athenahealth, as well as feedback from the company's executive vice president and chief operating officer, Dan Park.

The U.S. Department of Health & Human Services Office of Inspector General has taken the rather unusual step of terminating an advisory opinion originally in favor of a data exchange arrangement created by an electronic health record vendor.

OIG initially approved the athenahealth arrangement in 2011, in which physicians who purchase the "Coordination Service Package" received a discount on their monthly EHR service subscription fees. Each time the physician used the coordination service to make a referral to a "non-trading partner," the discount was reduced by an amount equal to or less than $1.00, until it disappeared entirely.  

"Trading partners" paid a per-order fee for each test order the vendor transmitted to the trading partner. OIG approved the arrangement because, among other things, the network was large, the arrangement was intended to facilitate the exchange of information among providers, fees were at fair market value and were unlikely to include referrals because they were low and capped.

In its notice of termination of the opinion, dated April 8, OIG has reconsidered its position, and now concludes that the arrangement could implicate the anti-kickback statute in the event that the "trading partner" is one that a physician may refer to frequently.

"We no longer find that the factors to which we cite in OIG Advisory Opinion No. 11-18 are sufficient to mitigate against the risk that the discount could be an improper payment to induce referrals of federal health care program business, particularly in the context of high-volume services, such as laboratory tests," the OIG statement said. "Although the discount offered under the arrangement may not influence an ordering health professional to refer a patient to, for example, a trading partner specialist versus a non-trading partner specialist, it may influence an ordering health professional to choose a trading partner for services the ordering health professional orders with a high degree of frequency, because ordering those services from a non-trading partner effectively would require the ordering health professional to forfeit the amount of the discount."

Athenahealth Executive Vice President and Chief Operating Officer Dan Park, in a statement posted to the EHR vendor's website, called the OIG's about face a setback for care coordination.

"The OIG's walk-back closes one promising path forward to a functioning, sustainable economic model for health information exchange," Park said. "It represents a setback for any patient who has ever been turned away from a doctor's office because their referral paperwork hasn't been received, or handed a clipboard to provide information that a practice should already have had."

EHRs are a key focus area of the OIG, constituting a significant part of both its 2014-2018 strategic plan and its 2014 Work Plan.

To learn more:
- here's the notice of termination (.pdf)
- read Park's statement