HHS-OIG Approves Clinician Leasing And MSO Support Model In The Context Of Telemedicine

Highlights

• HHS-OIG approved a structure where a physician-owned professional corporation (PC) would lease licensed telehealth clinicians from telehealth platforms and obtain non-clinical support services from these platforms, provided that strict safeguards are met.
• HHS-OIG emphasized the importance of compensation structures that are established by independent valuations of fair market value, are not tied to value or volume of referrals or likelihood of government funded health plan reimbursement, and are structured in advance at arm's length.
• HHS-OIG affirmed the significance of delineating between clinical and administrative services and ensuring contracted services do not exceed what is commercially reasonable and necessary to accomplish a legitimate business purpose.
• The advisory opinion provides a useful roadmap for telehealth organizations and physician PCs (including their MSOs) looking to develop compliant staffing and support arrangements.

On June 11, 2025, the U.S. Department of Health and Human Services Office of Inspector General (HHS-OIG) issued a favorable advisory opinion (Advisory Opinion 25-03), approving a proposed arrangement in which a physician-owned professional corporation (Physician PC), which uses a management service organization (MSO) for non-clinical management services, will lease telehealth clinicians from telehealth platforms (each a Telehealth PC) and receive certain telehealth administrative services from the applicable Telehealth PC. The clinicians the Physician PC leases from the Telehealth PC will provide telehealth services to the Telehealth PC's patients and bill for these services under the Physician PC's provider contracts with various insurers. The opinion confirms that the proposed structure, which is designed to improve telehealth access via in-network payor contracts, does not violate the federal Anti-Kickback Statute ("AKS"), so long as it adheres to specific safeguards.

Background

The parties that requested the opinion are Physician PC and the MSO. The MSO provides various non-clinical and administrative services, including credentialing, to the Physician PC. The Physician PC and its MSO are the "Requestors."

Under the proposed arrangement, the Requestors (the Physician PC that holds various payor contracts including Medicare Advantage plans and its MSO) would enter into a written agreement with a telehealth platform (i.e., a Telehealth PC) that employs and/or contracts with clinicians to provide telehealth services. However, the Telehealth PC would not have its own payor contracts and could not submit its own claims for telehealth services rendered by its telehealth clinicians.

Under the agreement, the Physician PC would lease telehealth clinicians from a Telehealth PC and credential these leased clinicians under its payor contracts. The Telehealth PC would provide non-clinical administrative support services to facilitate the leased clinician's telehealth appointments, with such services including: (a) HIPAA compliant telehealth infrastructure and IT support; (b) digital marketing and advertising services; (c) administrative support services (e.g., scheduling); and (d) billing and accounting services.

Under the terms of the agreement, the Telehealth PC services are to be provided in exchange for written, predetermined service fees set at fair market value determined by an independent valuator. Specifically, the Physician PC would pay the following fees: (1) an hourly leasing fee for telehealth clinician based on the telehealth clinician's license level ("Clinician Fee") and (2) administrative service fees based on the number and scope of services provided ("Administrative Fee"). Collectively, HHS-OIG considered the Telehealth PC's Clinician Fee and Administrative Fee as the "Service Fee."

Once the leased telehealth physicians were credentialed under the Physician PC's payor contracts, the Physician PC would submit claims for the telehealth services rendered by these clinicians under its payor agreements, including agreements with government funded health plans. Under the terms of the agreement, the Physician PC would be obligated to pay the hourly Clinician Fee for leased telehealth clinician services, regardless of whether the services were ultimately reimbursed by the payor.

HHS-OIG's Findings

In this instance, the HHS-OIG determined the arrangement implicates the AKS due to remuneration exchanged by the parties for federally reimbursable services. However, the agency concluded that the structure and associated Service Fee satisfies the AKS safe harbor for personal services and management contracts at 42 C.F.R. § 1001.952(d) because:

• The agreement is in writing, last at least one year, and specifies all services to be provided.
• All fees are determined in advance, reflect fair market value, and are not based on referral volume or value.
• Services are commercially reasonable even absent federal reimbursement.
• Clear separation is maintained between clinical and non-clinical functions.

Additional components of the proposed arrangement the HHS-OIG emphasized in determining it posed low risk of fraud and abuse were that the Service Fee was determined using independent valuation of fair market value and Physician PC's payment of the Clinician Fee was not contingent on being reimbursed by a commercial or government payor. That is the Physician PC would need to pay the predetermined hourly Clinician Fee for services rendered regardless of whether the telehealth service was reimbursed. HHS-OIG noted the lack of reimbursement contingency decreased the chance of the Service Fee being tied to the volume or value of referrals between the parties. The HHS also noted that the Requestors fully fit within the safe harbor because they certified that under the agreement with the Telehealth PC they would not counsel or promote a specific business arrangement.

HHS-OIG ultimately concluded that the proposed arrangement would not constitute prohibited remuneration under AKS and would not trigger sanctions, because the proposed arrangement strictly adhered to the safe harbor requirements, including arm's-length fee-setting, honest separation of clinical and administrative services, and independence from referral-driven compensation.

Key Takeaways

In this Advisory Opinion, HHS-OIG outlined valuable guidance for structuring compliant telehealth delivery models involving MSOs and third-party clinicians. In doing so HHS-OIG affirmed that healthcare organizations using or exploring similar models should:

• Ensure formal, arm's-length contracts with defined, measurable terms;
• Rigorously document fair market value assessments;
• Set fair market value fees in advance and in writing;
• Separate clinical functions from administrative services;
• Maintain oversight and internal policies that prevent referral-based compensation.

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