My colleague Nailah Jinnah wrote the following commentary on the HHS Office of Inspector General (OIG)'s recent advisory opinion on precertification support services.
The OIG released an Advisory Opinion on May 6 requested by a provider who planned to offer free precertification services to all referring physicians through a dedicated call center. The OIG concluded that while providing the service at no cost to patients and physicians may violate the Federal Anti-Kickback State, the OIG would not impose administrative sanctions on the provider.
More specifically, the non-for-profit hospital would establish a call center to process precertification requests from physician offices and patients. The service would be offered to all patients and physicians in the community and would not discriminate based on procedure volumes or potential value of referrals. In addition, call center staff would identify themselves as representatives of the provider when interacting with payers and regional benefit managers.
In contrast to the 2008 Advisory Opinion on precertification, this opinion discusses who is responsible for obtaining precertification. According to the opinion, if payers do not specifically allocate responsibility to physicians, providers are free to obtain precertification without fear of violating the Anti-Kickback Statute. Furthermore, the opinion goes on to say that given the large volume of plans and the differences in payer requirements, providers are unlikely to know a physician's obligation for a specific patient or order. Therefore, if the provider acquired the precertification when the payer specifically stated that it was the physician's responsibility, thereby violating the Anti-Kickback Statute, it would have occurred by chance, rather than design, and therefore would not be prosecuted. This part of the Opinion does seem to provide some protection for providers who acquire precerts on behalf of patients in plans that specifically require the ordering physician fulfill the process.
Other important reasons why the OIG decided not to sanction the hospital for offering free precertification services are listed below.
1. Service offered to all physicians and patients
As the service is offered to all physicians regardless of procedure volumes, risk of the provider using the service to reward referrals is low.
2. No money changes hands between provider and physician
As the provider is not paying physicians for referrals or guaranteeing that the precertification request will be approved, there is a low risk of fraud and abuse.
3. Call center operates transparently
Another important factor is that the call center informs payers and RBMs that they represent the imaging provider, not the referring physician. This provider payers with an opportunity to refuse to process the request if their plan specifically assigns responsibility for obtaining precertification to the physician.
4. Call center has limited influence over referral decisions
In contrast to home care liaisons or discharge planners, call center staff have little opportunity to influence referrals as the patient or physician would have decided which provider to use prior to contacting the call center. This suggests precertification support services can not be incorporated into the discharge planning process.
5. Legitimate business interest for providers to streamline precertification process
Finally, the OIG recognizes that while physicians and patients are often responsible for obtaining precertification, the providers reimbursement is at stake. As such, the providers have a legitimate financial interest in ensuring precertification is obtaining prior to providing services to the patient.
We think this is a mixed blessing. It's good that the OIG provided further clarity on this complex legal issue. However, this OIG opinion will result in a "game on" mindset for imaging providers who are looking to provide this service (even though the OIG specifically says that this Advisory Opinion is not intended to do so). In addition, hospitals that have been reluctant to provide this service to referring physicians because acquiring precerts is the ordering physician's responsibility have lost a bit of the moral high ground with this decision. Now, physicians only have to point to this Advisory Opinion for precedent when they ask imaging providers to relieve them of this burden. As for hospital imaging departments that already provide this service, while the Opinion does not explicitly endorse such a service, there is little in the Opinion to discourage the continued practice.
Of course we also must note that the Advisory Board is not in the business of offering legal advice--this is purely our take on the Opinion and its implications. As always, consult with your legal counsel when weighing the implications for your specific institutions.
For more information on developing precertification support services, please reference Enhancing Outpatient Access: Increasing Share and Elevating Service Through Improved Customer Interaction