On August 24, 2010, the Department of Health and Human Services Office of Inspector General (OIG) issued Advisory Opinion 10-13, discussing whether a hospital's proposal to provide insurance pre-authorization services free of charge to physicians and patients seeking diagnostic imaging services at the hospital would constitute grounds for the imposition of sanctions under the federal anti-kickback statute. As did the OIG in a similar opinion, Advisory Opinion 10-04, the OIG concluded it would not impose administrative sanctions due to certain safeguards reducing the risk that the free pre-authorization services may be inducements for referrals.
The hospital requesting the opinion certified to the OIG that many commercial insurers require providers to obtain pre-authorization from the insurer prior to providing imaging services to an insurer’s enrollee, or the insurer will not cover the services. Under the proposed arrangement, the hospital would provide free pre-authorization services for all patients referred to it for imaging services. As part of the service, the hospital’s “Pre-Access Department” would contact the patient’s insurer and provide it with the information necessary to obtain pre-authorization. This service would be provided at no charge and made available on an equal basis to all patients and referring physicians without regard to any physician’s overall volume or value or expected or past referrals. Additionally, no payments would be made to physicians under the proposed arrangement.
The OIG began its analysis by reiterating its position that arrangements involving the provision of free or below-market goods or services to actual or potential referral sources are suspect because there is a risk that one purpose of the goods or services is to influence referrals. Nevertheless, the OIG concluded that although the proposed arrangement could potentially generate prohibited remuneration under the anti-kickback statute, it would not impose sanctions under the anti-kickback statute for the following reasons:
- The proposed arrangement would not target particular referring physicians and due to the large number of insurance plans, the hospital would be unlikely to know the physician’s obligations for any specific patient;
- The proposed arrangement contains safeguards that reduce the risk of fraud and abuse, such as the hospital would give no assurances to physicians that pre-authorizations would be obtained and no payments would be made to physicians;
- The “Pre-Access Department” handling the pre-authorizations would operate transparently such that insurers would know that the hospital was conducting the pre-authorizations; and would not influence referrals because patients would have already selected the hospital for services; and
- The hospital has a legitimate business interest in offering pre-authorization services to assure that it receives payment from the insurers for its services.