On September 19, 2008, the Office of Inspector General (OIG) issued Advisory Opinion No. 08-12 regarding a legal entity -- "Newco" -- to be formed by the Requestor to provide administrative insurance preauthorization processing and submission services for radiology and imaging centers. The centers would provide Newco with the patient information necessary for Newco to process and submit the preauthorization requests. The centers would pay Newco a "per service" fee for each preauthorization processed and submitted, regardless of whether or not the patient's insurer ultimately granted the preauthorization. Newco would make no assurances to the centers or to any patient with respect to obtaining preauthorization from any insurer. The fee would be the same for all centers and would represent fair market value for the services. Further, Newco would have no other direct or indirect financial relationship with the centers.

Concluding that the proposed arrangement would not result in referrals of federal healthcare business, the OIG opined that the arrangement would not generate prohibited remuneration under the anti-kickback statute. Of significance to the OIG was the fact that neither the Requestor, nor Newco, is, was, or would be (1) a healthcare provider, practitioner or supplier, (2) affiliated with the healthcare industry other than in the performance of obtaining authorizations, (3) in a position to receive or influence referrals of items or services covered under a federal healthcare program, or (4) in contact with private payor or federal healthcare program beneficiaries in the performance of their businesses.

The OIG found that there could be no violation of the anti-kickback statute absent potential referrals of federal healthcare program business. Newco would be performing purely administrative services; the services would not rise to the level of arranging for or recommending purchasing, leasing, or ordering items or services payable under a federal healthcare program; nor would the services involve coding, billing, or claims processing or review, which could potentially generate federal healthcare program business.

The OIG distinguished the proposed arrangement from potentially problematic arrangements where services are provided by a supplier, such as an imaging facility, or manufacturer, to a potential referral source. Those arrangements, said the OIG, pose a significant risk of fraud and abuse. The OIG went on to note that if an imaging center or manufacturer were to pay Newco to provide the services for or on behalf of a referral source, then the imaging center or manufacturer would be providing prohibited remuneration to a referral source, in violation of the anti-kickback statute