On July 11, 2023, OIG posted Advisory Opinion 23-04 regarding the use of an online healthcare directory for Federal healthcare program beneficiaries to find and book appointments with medical providers. Requestor sought OIG’s approval with respect to the use of the current version of the online directory as well as proposed changes to the platform. OIG determined that, although the arrangement would generate prohibited remuneration under the Anti-Kickback Statute (AKS) and the Beneficiary Inducements civil monetary penalty (CMP), it would not impose administrative sanctions in connection with the AKS or CMP.

The Arrangement

Requestor operates an online directory platform—through both its website and mobile application—that allows individuals to search for and book medical appointments with healthcare providers.

The platform does not charge users, but it charges providers “per-booking fees”—fees for each appointment booked through the platform where the user is a new patient of the provider and has not previously booked an appointment with that provider through the platform. Requestor sets the fee for each new-patient appointment booking based on valuations by an independent, third-party valuation firm. Users’ insurance status (i.e., whether the user is self-

insured, uninsured, commercially insured, or covered by a Federal program) is not a factor in determining the per-booking fees.

Under the existing platform, providers who pay the per-booking fees can set a limit on the number of new-patient appointment bookings they receive per month, which automatically resets at the start of the next month. Under this functionality, providers who have reached their monthly spending cap are removed from the search results, and users are not able to book new appointments with those providers.

Requestor proposed changes to the platform functionality that would allow providers who have reached their monthly spending cap to still appear in the search lists for users who identify as non-commercial users (i.e., users who either identify as Federal healthcare program beneficiaries or who decline to provide their insurance coverage information at the time of a search) as long as the providers meet the non-commercial users’ other criteria. The search results would show through an icon which providers have reached their monthly spending cap.

The platform also uses an algorithm that filters provider options shown to the users based on the criteria set by the users. The algorithm uses more than 180 different criteria, but the users’ historical engagement with specific providers is not a factor in determining the order in which those providers appear in the search results. Further, for non-commercial users, the algorithm does not factor in the amount providers pay to Requestor or whether providers have a monthly spending cap.

The platform also allows providers to pay a fee to purchase advertisements to be shown at the top of the results. The paid advertisements are displayed to all users, regardless of insurance status, and do not specifically target Federal healthcare program beneficiaries.

OIG’s Determination

First, OIG determined that the arrangement would generate prohibited remuneration because Requestor provides remuneration to users in the form of free access to the platform, and the remuneration induces users to purchase providers’ services, and the platform allows providers to pay Requestor—through the per-booking fees and/or the paid advertisements—to recommend providers’ services, some of which are reimbursable by a Federal healthcare program. OIG also determined that no safe harbor provisions apply to this arrangement.

Second, OIG determined that under the Beneficiary Inducements CMP, the free access to the platform could influence beneficiaries to select a provider for the receipt of services that are reimbursable by a Federal healthcare program.

Notwithstanding the above, OIG ultimately determined that it would not impose administrative sanctions under the AKS or the Beneficiary Inducements CMP for the following reasons:

1. Requestor certified that the per-booking fees and the advertisement fees do not exceed fair market value for the services Requestor furnishes to providers in connection with the platform.
2. Requestor is not a provider or supplier of any medical items or services and is not affiliated with any provider using the platform. Requestor is therefore unlikely to be in the position to exert undue influence when recommending healthcare providers to users.
3. Requestor’s advertising activities are passive in nature and do not specifically target Federal healthcare program beneficiaries.
4. Requestor’s marketing activities promote providers who purchase the advertisements but do not promote any particular item or service.
5. The platform is accessible by any individual, regardless of insurance status. In other words, the platform does not target Federal healthcare program beneficiaries or otherwise influence their decision-making.
6. Requestor’s proposed changes would implement transparency safeguards related to the appearance of providers’ monthly spending cap, allowing non-commercial users to find and book appointments with providers notwithstanding that the providers’ ability to book new patients may be temporarily unavailable due to the monthly spending cap.
7. Requestor certified that the algorithm does not order search results based on the amount providers pay to Requestor or whether providers have a monthly spending cap.
8. Requestor does not offer anything of value to Federal healthcare program beneficiaries to induce them to use the platform.

The Advisory Opinion is available here.