On December 28, 2023, the Office of Inspector General (the “OIG”) issued a favorable Advisory Opinion (No. 23-15) (the “Opinion”) to a consulting vendor (the “Requestor”) that wanted to provide up to $75 in gift cards to physician practices in exchange for referring the Requestor’s practice optimization services (e.g., workflow and performance assessment, data analytics, and certain Medicare eligibility and performance assistance). Among other things, the Requestor: (i) did not itself provide any services that were eligible for reimbursement under any Federal healthcare program to any of its clients, (ii) did not have an ownership or investment interest in any entity that provided items or services paid for by any Federal healthcare program, and (iii) received compensation from the physician practices that did not vary based on whether the physician practices received a greater or lesser reimbursement from Medicare based on the Requestor’s services. The Opinion concluded that this proposed arrangement would not generate prohibited remuneration under Section 1128B(b) of the Social Security Act (the “Act”), also known as the Federal Anti-Kickback Statute (“Anti-Kickback Statute”), and thus OIG would not impose administrative sanctions under Section 1128A(a)(7) (exclusion) or Section 1128(b)(7) (civil monetary penalty) of the Act on the Requestor. As always, the Opinion stipulated that it may only be relied on by the Requestor on the specific facts presented to OIG, and that certain state and federal laws may continue to limit similar arrangements. However, the Opinion indicates that the tight scope of potential marketing options for physician practice vendors could expand a bit for those who are similarly situated to the Requestor.Continue Reading New Marketing Possibilities for Vendors Contracted with Medicare Providers and Suppliers Following OIG’s Favorable Advisory Opinion on Limited Referral Bonuses
Gabriela Garcia-Bou is a law clerk in Sheppard Mullin’s New York office.
Sheppard Mullin and Jarrard co-presented 10 Ways to Screw Up Your Deal, a webinar discussing the pitfalls that can sabotage a deal and best practices to avoid them. Here’s a link to the webinar: 10 Ways to Screw Up Your Deal | Sheppard Mullin and a summary of the webinar’s takeaways.Continue Reading Sheppard Mullin 10 Ways to Screw Up Your Deal
Healthcare transactions are complicated endeavors and approaching them with your eyes wide open can be the difference between closing the deal and the negotiations falling apart. Failing to consider and navigate common pitfalls is an easy way to wreck a deal.Continue Reading Sheppard Mullin 10 Ways to Screw Up Your Deal
Introduction: Defining Interprofessional Consultation
In a January 5, 2023, letter to state health officials, the Centers for Medicare & Medicaid Services (“CMS”) clarified a Medicaid and Children’s Health Insurance Program (“CHIP”) policy on the coverage and payment of interprofessional consultations (the “Guidance”). An interprofessional consultation occurs when the patient’s treating physician requests the opinion and/or advice from a specialist practitioner without the patient making face-to-face contact with the specialist practitioner. The new CMS guidance clarifies that it is permissible for Medicaid and CHIP to provide reimbursement for an interprofessional consultation when the consultation is for the direct benefit of the patient without the patient’s presence.Continue Reading CMS Issues Interprofessional Consultation Guidance
The abortion debate continues in America after the Supreme Court decision in Dobbs v. Jackson and the midterm elections on November 8th. Following our first post in this series, there have been a number of noteworthy developments* that occurred over the past month including several significant events at both federal and state levels as well as recent activity by registered voters during the midterms to protect access to reproductive care.Continue Reading Part 2: An Update on the Federal and State E-Roe-sion or P-Roe-tection of Abortion Rights
On July 13, 2021, the Centers for Medicare & Medicaid Services (“CMS”) unveiled a proposal to temporarily extend Medicare coverage for particular telehealth services granted during the COVID-19 public health emergency (the “Pandemic”), in order to evaluate which services should be covered permanently. Through the 2022 Physician Fee Schedule (“PFS”), CMS is allowing certain services to remain on the telehealth list until the end of December 31, 2023.
Continue Reading CMS’ Proposal to Expand Telehealth Coverage