The Department of Health and Human Services (HHS) Office of Inspector General (OIG) issued Advisory Opinion No. 08-12 on Sept. 19, 2008, regarding a proposed arrangement under which a newly formed legal entity (Newco) would provide purely administrative insurance preauthorization processing and submission services for various radiology and imaging centers. Under the proposed arrangement, Newco would charge a "per-service" fee for each preauthorization processed and submitted, regardless of whether or not the patient's insurer ultimately grants the preauthorization for the subject radiology or imaging procedure.
The OIG concluded that the proposed arrangement would not generate prohibited remuneration under the Anti-Kickback Statute. The OIG provided the following reasons for its conclusion:
- Newco is not a health care provider, practitioner or supplier, or in any way affiliated with the health care industry (other than through the performance of the services under the proposed arrangement);
- Newco would furnish the insurance preauthorization process and submission services to health care providers and suppliers at an arm's-length fair-market rate;
- Newco would not have the ability to receive or influence referrals;
- The services under the proposed arrangement are distinguishable from arrangements involving marketing services, which by their nature are intended to promote a particular item or service;
- Newco would not have contact with patients or anyone other than the radiology and imaging centers; and
- Newco does not have, has not had, and would not have direct contact with private payor or federal health care program beneficiaries in the performance of its business and, thus, Newco is not in a position to receive or influence referrals of Federal health care program business.
Nonetheless, the OIG noted that if a radiology or imaging center, or other third party, paid Newco to provide preauthorization processing and submission services for or on behalf of a referral source (such as a physician), and thus relieved the referral source of the costs of processing and submitting preauthorizations, the radiology or imaging center, or other third party, could then be providing prohibited remuneration in violation of the Anti-Kickback Statute.