[author: Kasey Ashford]

On December 16, 2021, OIG issued an advisory opinion (Advisory Opinion No. 21-20) to a requestor (Requestor) regarding a proposal to create an online search platform for users to find and contact home-based health care providers. OIG determined that it would not proceed against Requestor under the Anti-Kickback Statute or the Beneficiary Inducements CMP law based on the information provided about the proposed platform.

Requestor would provide free access to the search platform for users and allow them to search for providers of home-based health care services. The Advisory Opinion listed those services as including “skilled and non-skilled home health services, home-based physician services, nursing services, non-emergency transportation, mental health counseling, therapy services, hospice care, and infusion services.” Home-based health care service providers who want to be listed on Requestor’s platform may enroll with Requestor by paying monthly fees and providing Requestor with a list of information necessary to make the providers searchable (such as a list of services, geographic areas of service, and which health insurance is accepted). The platform and newsletter would sell advertising spots to non-health care entities for a fixed monthly fee.

To use the platform, users would enter information specifying their age, gender, location, insurance or payment source, and the service for which they are looking. The platform would generate search results and have the users determine how they want to see the results sorted—by percent matching their search criteria, distance, reviews, or just alphabetical order. The platform would then show the results of providers enrolled with Requestor, or if there are none, it would show non-enrolled providers. The platform would also allow users to opt-in to a newsletter containing educational articles about home-based health care services.

The Anti-Kickback Statute prohibits the knowing and willful offer, payment, solicitation, or receipt of any remuneration to induce, or in return for, the referral of an individual to a person for the furnishing or arranging for the furnishing; or the purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering; of any item or service reimbursable under a Federal health care program. The Beneficiary Inducements CMP provides for the imposition of penalties against a person offering or transferring remuneration to a Medicare or Medicaid beneficiary that the person knows, or should know, is likely to influence the beneficiary to receive any item or service reimbursed under those programs from a particular provider, practitioner, or supplier.

OIG determined that payments for advertisements on the platform and newsletter would not implicate the Anti-Kickback Statute. In reaching that determination, OIG noted that Requestor would not design any advertisements or augment them in any way—Requestor would only sell the advertisement space. Requestor would sell advertisement space to anyone, except providers of home-based health care services, and no one would have an exclusive advertisement arrangement. Requestor would label advertisements with a disclaimer that they are not recommendations. And the advertisements would be sold at a fixed monthly fee that would not change based on clicks or views. Lastly, the platform would not market itself to be operated by a health care provider or supplier. The totality of those facts led OIG to conclude that the advertising aspect of the platform would not implicate the Anti-Kickback Statute.

OIG determined that the monthly and per-contact fees paid by enrolled providers potentially would implicate the Anti-Kickback Statute but concluded that the platform would pose a low risk of fraud and abuse under all of the relevant circumstances. In reaching its conclusion, OIG noted four key points of analysis:

• The fees charged by Requestor would not vary based on the provider. The fees would not factor in the volume or value of any business generated through the platform. The provider fees paid to Requestor would not affect how frequently providers appear on the platform’s search results or how high they appear on the results page.

• None of the Requestor owners provide, directly or indirectly, any home-based health care services that would be offered on the platform. They are not affiliated with any potential providers who would enroll in the platform, and the platform would not steer users to any particular provider. These facts in combination avoid the danger of “white coat” marketing where a position of trust could be exploited for profit.

• Any individual can access the platform irrespective of his or her insurance status or payment source. Requestor would only use information collected about users for generating search results on the platform. Requestor would not offer any inducements to users to use the platform beyond free use of the platform, and users would not receive anything from providers.

• Requestor created additional safeguards to reduce the risk of fraud and abuse: the platform would not promote any specific items or services of the providers; the platform would alert users that their search results show providers who paid to be included and that other providers might be available; and if no enrolled providers show in the results, then the platform would show non-enrolled providers.

Based on these facts, OIG concluded that the platform would present a minimal risk of fraud and abuse under the Anti-Kickback Statute. OIG also concluded that although the platform could influence beneficiaries of federal health care programs to select a particular provider who enrolled with the platform, OIG would not impose sanctions under the Beneficiary Inducements CMP.

The full text of Advisory Opinion No. 21-20 is available here.