Athenahealth: OIG’s Advisory Opinion Reversal ‘Disappointing’

April 10, 2014 in News

Electronic health record systems vendor athenahealth says it is “disappointed” in the HHS Office of Inspector General’s recent decision to reverse a 2011 advisory opinion on the fee structure for its health information exchange service, Health Data Management reports (Slabodkin, Health Data Management, 4/9).


In 2011, OIG approved a fee arrangement for a data exchange service created by an EHR vendor, recently self-identified as athenahealth.

The service offer direct two-way connections between athenahealth’s EHR customers and other service providers, such as laboratories. Through the service, physicians could submit lab orders directly from their EHRs and labs could then place results in patient records.

The initial OIG opinion was that athenahealth could charge both the physicians and the labs involved. OIG also approved athenahealth’s plan to provide discounts to physicians who purchased an EHR and used the data exchange system.

However, athenahealth also charged physicians for a certain number of orders to labs that did not contract with the vendor. Those fees essentially would reduce the discount (Conn, Modern Healthcare, 4/9).

In its original 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” (iHealthBeat, 4/9).

Details of Reversal

On Tuesday, OIG issued a termination of the opinion reversing its previous decision.

The opinion was made in response to a request for a separate opinion on the deal from one of the national labs contracted with athenahealth.

In its new opinion, OIG said that the fee structure “could potentially influence the referring physicians’ referral decisions in a material way,” particularly when dealing with high-volume business partners such as a lab, and “potentially generates prohibited remuneration,” which violates federal anti-kickback laws (Modern Healthcare, 4/9).

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” (iHealthBeat, 4/9).

Athenahealth Response

In a blog post on Tuesday, athenahealth COO Ed Park characterized the decision as a “setback” for patients and for efforts to coordinate care. He wrote, “We are disappointed with the OIG’s decision to reverse course and terminate its Advisory Opinion No. 11-18.” He added, “The OIG’s walk-back closes one promising path forward to a functioning, sustainable economic model for health information exchange” (Health Data Management, 4/9).

He noted that the transaction fees will be shifted to any messages across the network. To offset the cost, he said athenahealth plans to lower its base EHR price and set a limit on the total amount physicians can be charged in cost-per-order transaction fees (Modern Healthcare, 4/9). 

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