OIG Issues Notice of Termination on 2011 EHR Data Exchange Opinion

April 9, 2014 in News

On Tuesday, HHS’ Office of Inspector General reversed an advisory opinion from 2011 on financial incentives for an online information exchange arrangement, FierceEMR reports.


The original advisory opinion was issued specifically for a data exchange arrangement created by an EHR vendor. Under the arrangement, physicians who purchase the “Coordination Service Package” could receive a lower price on their monthly electronic health record service subscription payment. If the physician used the service for referrals to a “non-trading partner,” the discount would be reduced (Durben Hirsch, FierceEMR, 4/8). 

In its 2011 advisory opinion, OIG noted that the arrangement “could potentially generate prohibited remuneration under the federal anti-kickback statute if the requisite intent to induce or reward referrals of federal health care program business were present.”

However, it concluded the payment structure “would be unlikely to influence an ordering health professional’s referral decisions in a material way” and did not administer any sanctions (Slabodkin, Health Data Management, 4/9).

Details of Reversal

In a notice of termination of the opinion, OIG noted that if a physician refers to a “trading partner” frequently, the anti-kickback statute could be implicated.

For instance, the notice stated if a provider refers a patient to “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.”

The notice concluded, “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” (FierceEMR, 4/8).

However, the letter notes that OIG “continues to believe that the efficient exchange of health information between health professionals is a laudable goal” (Health Data Management, 4/9).

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