OIG's Continuing Education Program Advisory Opinion: Due Diligence Considerations

JD Supra (07/19/22) Lewis, Morgan

A recent advisory opinion from the U.S. Department of Health and Human Services Office of Inspector General (OIG) focused on fraud and abuse considerations in provider-sponsored continuing education (CE) programs. Specifically, the advisory opinion looked at programs sponsored by an ophthalmology practice that specializes in cataract and refractive surgery, working with area optometrists. The opinion should help guide healthcare transaction due diligence of ophthalmology practices and other practice specialties with sponsored CE programs for referral sources. The OIG has acknowledged that CE activities may be exploited to remunerate referral sources and direct patients and federal healthcare program business in breach of the federal anti-kickback statute. The advisory opinion validates the applicability of suspect characteristics identified in OIG's 2020 Special Fraud Alert for pharmaceutical and medical device companies to physician practice-sponsored CE programs. In performing due diligence of physician groups, ophthalmology practices especially, the opinion highlights assessing their marketing and business development programs to identify and vet any sponsored CE activities for potential fraud and abuse. Due diligence should cover the program's actual educational value to participants; appropriateness of meals for attendees; the program venue's benefit to educational programming; selection of speakers and attendees; and remuneration of program speakers. Similarly, private equity sponsors with healthcare portfolio companies that want to develop CE programs involving referral sources should also weigh these factors.

Read More