You May be Paying for Software. OIG May See a Referral Payment.

We came across OIG Advisory Opinion 26-15 and thought it was worth sharing because it highlights a compliance risk that is becoming increasingly common as healthcare organizations adopt referral management and care coordination technology.

On the surface, the arrangement seems straightforward. A home health agency paid a subscription fee to participate in an electronic referral platform used by hospitals during the discharge planning process. The platform allowed participating home health agencies to receive referrals and respond in real time.

The problem? Participation in the platform appeared to provide a significant advantage in obtaining referrals.

According to the advisory opinion, hospitals using the platform often awarded referrals on a first-come, first-served basis. Agencies that subscribed to the platform could review and accept referrals immediately, while agencies that did not subscribe had to rely on more traditional communication methods such as phone calls, emails, or faxes. In practice, that delay could mean losing the referral opportunity altogether.

That distinction caught OIG's attention.

Why OIG Was Concerned

OIG concluded that the arrangement implicated the Federal Anti-Kickback Statute because the platform was facilitating the referral of federally reimbursable services, and providers were paying to participate.

The advisory opinion spends time analyzing the referral services safe harbor, but the broader concerns are what we found most interesting.

First, OIG was concerned that providers were gaining an advantage in receiving referrals because they paid for access to the platform. The agency viewed this as creating a risk of steering and potentially disadvantaging providers that either could not afford or chose not to participate.

Second, OIG raised concerns about overutilization. Whenever providers pay for access to referral opportunities, there is a risk that they may feel pressure to generate sufficient business to justify the cost of participation.

Neither of these concerns is new, but they are increasingly relevant as technology companies continue to develop tools that sit between referral sources and healthcare providers.

The Bigger Lesson

For practices, the most important takeaway is that OIG is looking beyond the technology itself and focusing on how the arrangement functions in practice.

Too often, organizations assume that because an arrangement involves software, a platform, or a technology subscription, it is fundamentally different from more traditional referral arrangements.

This opinion reminds us that regulators will look at substance over form.

If a provider is paying for access to a system that materially improves its ability to obtain federally reimbursable referrals, OIG may view that payment very differently than the parties involved do.

The compliance question is not whether the arrangement involves technology.

The compliance question is whether the technology creates a mechanism through which referral opportunities are bought, sold, prioritized, or otherwise influenced.

Questions Compliance Officers Should Be Asking

As referral management platforms, provider marketplaces, care coordination tools, and digital scheduling solutions continue to expand, compliance leaders should be asking a few important questions:

• Does participation in the platform affect who receives referrals?

• Are providers who do not participate placed at a competitive disadvantage?

• Is pricing structured in a way that could be viewed as payment for referral opportunities?

• Does the arrangement fit within an applicable Anti-Kickback Statute safe harbor?

• How would we explain the business purpose of the arrangement to a regulator?

These questions are not limited to home health. They are equally relevant in behavioral health, post-acute care, DME, specialty provider networks, value-based care arrangements, and many healthcare technology platforms.

Final Thoughts

What makes this advisory opinion interesting is that it reflects a broader trend. Healthcare organizations are increasingly using technology to streamline referrals, improve care coordination, and reduce administrative burden. Those are worthwhile goals.

At the same time, compliance risks do not disappear simply because a referral process is moved from a fax machine to a software platform.

AO 26-15 serves as a useful reminder that when evaluating healthcare technology arrangements, compliance professionals should focus not only on what the technology does, but also on how it influences referral patterns and financial relationships between parties.

For more information on this topic, go to Advisory Opinion.