Earlier this month the OIG came out clearly against a home health agency paying a vendor for access to referrals of federal healthcare program beneficiaries, which implicated the Federal Anti-Kickback Statute (AKS).

To make explicit what happens when a patient is getting sent from one provider to another, information about that patient and what’s being ‘ordered’ has to go from Provider A to Provider B. The vast majority of Provider A to Provider B handoffs happen via eFax and secure email. And as much as people rail against this idea of such an ‘unstructured’ handoff, it’s worth remembering pretty much everything in healthcare is unstructured. The narrative of what the doctor thinks is wrong, the policy guidelines from payers that must be met, and the series of next steps that should be taken. It’s all highly ‘unstructured,’ like the narratives and facts of a legal case.

And just like great lawyers, the receivers of these patients spend an inordinate amount of time working to put the pieces together. And they take the pieces whichever way they come in.

As Provider B, one day you wake up, and a certain Provider A is no longer sending you patients the way they always have. Through one means or another (a cheeky sales person, a deviant payor or an ill-informed legislator) Provider A is now sending their patients (for your specialty) through a new fancy ‘magic portal.’

At first, it seems this magic portal might do away with the pains of taking in patients. The website says so at least. After all, this magic portal is ‘structured’ and ‘digital.’ But as you go on, you find that just as with any of these portals, the only structure ends up being a PDF viewer that shows the exact same bits of unstructured information but taped together on a GUI so complex it will now require a separate team trained to work just this one portal.

Now, that simple exchange is already a big problem, but it does not stop there.

Then the sales person who got Provider A to sign a $0 contract and begins to send through the ‘Magic Portal’ for free comes to you and says, “I don’t really care if you like using the magic portal to receive your patients - I have no real incentive to care - but if you don’t start paying us you won’t be seeing any more patients from Provider A.”

There’s only one escape hatch for referral services like this one: a safe harbor that requires the fees to be uniform for every participant based on what it actually costs to run the service. But our cheeky sales rep can’t help himself. He looks around the fancy office of Provider B, and thinks Provider B can clearly afford to pay just a little more, and lo and behold Provider B gets a slightly higher price than other receivers of patients (provider C,D and so on).

That is what the OIG has made especially clear it has a problem with.

Of course, none of these magic portals can help themselves and all have such variant pricing.

Now, isn’t this just the government intervening on a healthy free market economy working itself out, moving away from those nasty faxes? Well, no - see, this cost that is forced onto Provider B and creates no economic benefit for Provider B will now be used by Provider B to justifiably argue for higher reimbursements from the Medicare fund and the taxpayer will end up footing the bill.

All of this is made worse by the fact these portals are particularly NOT MAGICAL.

Tennr works primarily with Provider Bs. We work with so many Provider Bs that we’re approaching half of all Provider As in the US as senders into one of our Provider Bs (our customers). We start at the faxes, emails, and you best believe a TON of orders from these magic portals before helping accelerate the legwork that gets these patients through. But for purposes of this section, just note, we interface with many of these magic portals.

And while the OIG is best to speak in ambiguity and hypothetical injunctions about how these portals are likely violating anti-kickback statutes, our data has told a pretty clear story on whether these portals are actually creating any value for the system.

Across every order across more than a few dozen specialties, these portals consistently:

• Led to greater patient delays
• Required more administrative labor to work them
• Saved effectively zero back and forth compared to ‘unstructured’ means
• Limit the network of available providers for patients

But, with a free product deployed at a great deal of Provider As across the U.S, the government once again finds themselves inadvertently sponsoring a cartel like it’s the 80s. A cartel that is funded by the providers that rely on patient flow or payers who benefit to see it restricted.

A host of cartels who scream efficiency while creating none, and tout digital convenience while restricting the options of a patient. Cartels with fancy websites that assure you they are ‘fixing’ US healthcare and not running a vast network of digital tollbooths. Tollbooths that increase local traffic jams and degrade the roads.

And if you’re a tax-paying American, then yes, you are paying for it.

And to be clear, this isn’t a swipe at TPAs or the networks that administer benefits on behalf of payers. That’s real work, with a payer on the other end footing the bill: a completely different beast from charging a provider for the privilege of seeing a referral before anyone else does.

This opinion is a good step forward from the OIG, and invites each of these magic portals to publicly ask for an advisory opinion on their business model to ensure their users are not going to be implicated in a massive Anti-Kickback violation.