Telehealth Staffing and Administrative Services Gain Favorable Advisory Opinion From OIG

The OIG concluded that a proposed arrangement involving the leasing of health care professionals and the provision of administrative services to a physician-owned professional corporation (PC) would not constitute grounds for the imposition of sanctions under the Anti-Kickback Statute (AKS) if structured and operated as described. The Advisory Opinion offers a significant compliance roadmap for structuring telehealth staffing and administrative service models.

Background and Parties Involved

The arrangement reviewed by the OIG involved several key parties:

• Requestor Inc.: An MSO providing non-clinical management services.
• Requestor PC: A PC holding extensive contracts with commercial health plans, Medicare Advantage, and Medicaid managed care plans, but not directly employing clinical staff.
• Platforms and Platform PCs: Independent MSOs supporting telehealth provider groups that deliver a range of telehealth services to patients via online platforms.

Description of the Proposed Arrangement

Under the proposed agreement:

• Requestor PC would lease health care professionals (HCPs) from Platform PCs to provide telehealth services to patients covered by Requestor PC’s insurance contracts.
• Platforms would provide administrative services to Requestor PC, including accounting (such as collection of patient cost-sharing), marketing, scheduling, and IT support (including a telehealth platform that meets HIPAA security and privacy requirements).
• Requestor PC would credential the leased clinicians and facilitate their enrollment under its payor contracts, submitting claims for services provided by these clinicians.

Compensation Structure and Compliance Safeguards

The financial relationship is structured to comply with regulatory safe harbors:

• Fee Structure: Requestor PC pays an hourly lease fee for HCPs (based on licensure type) and a separate administrative services fee.
• Fair Market Value: All fees are set in advance, consistent with fair market value, and determined by an independent third-party valuator.
• No Referral-Based Compensation: The methodology for determining fees does not take into account the volume or value of referrals or other business generated between the parties.
• Written Agreement: The arrangement is memorialized in a written agreement, signed by all parties, for a term of at least one year, and specifies all services provided.
• Payment Independence: The lease fee for HCPs is paid regardless of whether Requestor PC is reimbursed by third-party payors, reducing the risk of improper financial incentives.
• Commercial Reasonableness: The arrangement is commercially reasonable even if no referrals result, and the services contracted for are reasonably necessary to accomplish the business purpose.

OIG’s Legal Analysis and Conclusion

The OIG reviewed the arrangement under the AKS, which prohibits offering or receiving remuneration to induce referrals for services reimbursable by federal health care programs. The OIG found that the proposed arrangement, as structured and certified, would be protected by the safe harbor for personal services and management contracts and outcomes-based payment arrangements (42 C.F.R. § 1001.952(d)(1)). Key factors supporting this conclusion included:

• Fees are set in advance and reflect fair market value.
• Compensation is not tied to the volume or value of referrals.
• The arrangement is commercially reasonable and does not involve unlawful promotion or counseling.
• The agreement is in writing, signed, and specifies all services for a term of at least one year.

The OIG concluded that the arrangement would not generate prohibited remuneration under the AKS and would not result in administrative sanctions if implemented as described.

Takeaways

• Safe Harbor Compliance Is Critical: The OIG’s opinion underscores the importance of structuring telehealth staffing and administrative arrangements to meet all elements of the applicable AKS safe harbor, particularly regarding advance fee setting, fair market value, and separation from referral volume.
• Written Agreements and Documentation: All arrangements should be clearly documented in a written agreement and signed by all parties, specifying the scope of services and compensation methodology.
• Independent Valuation: Engaging a reputable, independent third-party valuator to determine fair market value for both clinical and administrative services is a best practice.
• Payment Independence From Reimbursement: Structuring payments so that they are not contingent on payor reimbursement helps mitigate risk of improper financial incentives.
• Commercial Reasonableness: The arrangement must be commercially reasonable and not exceed what is necessary to accomplish the business purpose, regardless of referral volume.
• Scope of Opinion: The OIG’s opinion is limited to the specific facts presented, applies only to the parties requesting the opinion, and should not be relied upon by any other individuals or entities. It does not address compliance with other laws, such as the physician self-referral law, or the terms of payor contracts.

Thoughts for the Future

While this advisory opinion provides useful guidance, organizations should consult with legal counsel before implementing similar arrangements, as even minor variations from the approved structure could raise regulatory concerns. The OIG’s analysis highlights the growing role of MSOs in supporting telehealth delivery and the importance of robust compliance frameworks. As telehealth continues to evolve, organizations should:

• Monitor Regulatory Developments: Stay abreast of further OIG guidance and advisory opinions, as the regulatory landscape for telehealth and management services arrangements continues to develop.
• Review Ancillary Arrangements: Ensure that any additional agreements or relationships outside the primary arrangement are also reviewed for compliance.
• Engage Legal Counsel: Consult with experienced health care counsel to address the full range of regulatory considerations, including state law, state telehealth requirements, corporate practice of medicine restrictions, Stark Law, state fraud and abuse laws, and payor contract requirements.
• Implement Ongoing Compliance Oversight: Establish processes for regular review and monitoring of telehealth arrangements to ensure continued compliance as business models and regulations evolve.

The OIG’s favorable opinion is a significant step forward for telehealth staffing and administrative service models, but organizations must remain vigilant and proactive in their compliance efforts as the industry and regulatory expectations continue to change.