On January 3, 2024, the Office of Inspector General (OIG) issued an Advisory Opinion that approved a vendor’s referral program that offered gift cards to physician practices (who are the vendors existing customers), in exchange for recommending the vendor’s services to prospective fellow physicians. With this Advisory Opinion, the OIG adopted a position that is directly contrary to the position that the Department of Justice (DOJ) outlined in multiple False Claims Act (FCA) settlements, which included similar referral programs offered by electronic health record (EHR) vendors, which the DOJ previously alleged that this type of referral program violated the federal Anti-Kickback Statute (AKS).
The OIG’s analysis in Advisory Opinion 23-15 on the surface appears to contradict the DOJ’s position in at least three (3) prior FCA lawsuits that involved similar referral programs that were offered by EHR vendors. It should be noted that between 2017 and 2021, the DOJ settled three (3) separate lawsuits against CareCloud Health Inc., Athenahealth, Inc., and eClinicalWorks, respectively, all of which involved allegations that gift cards and payments made by vendors to physician practices violated the AKS.
It will be interesting to see how the OIG and DOJ view gift card referral programs in the future.
About Us
Oberman Law Firm represents clients in a wide range of practice areas, including private equity, M&A, healthcare, corporate transactions, intellectual property, data privacy and security, regulatory compliance and governance, cross-border transactions, labor and employment, construction law, litigation, private clients’ services, corporate restructuring, and white-collar and governmental disputes.
As a firm, we offer the highest quality legal advice coupled with extraordinary and tailored service to deliver exceptional results to our clients. Our philosophy is to invest deeply in the brightest legal talent and build dynamic teams that operate at the pinnacle of respective practice areas. We believe in empowering our attorneys, encouraging entrepreneurialism, operating ethically and with integrity, and collaborating to bring the very best to every client engagement. These principles have guided us in building extraordinary and successful long-term partnerships with our clients.
