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OIG Opines Favorably on Electronic Kiosks Provided by Pharmaceutical Manufacturer

by Linda G. Rodrigue

In Advisory Opinion No. 08-05, issued February 15, 2008, the OIG concluded that an arrangement whereby a pharmaceutical company placed electronic kiosks in physician offices would not generate prohibited remuneration under the anti-kickback statute. Further, the OIG opined that the arrangement would not violate the federal prohibition against giving anything of value to a Medicare or Medicaid beneficiary that is likely to influence the beneficiary’s selection of a particular provider.

In Opinion 08-05, a pharmaceutical company requested an opinion regarding a proposal to place electronic kiosks offering free disease state screening questionnaires in primary care physicians’ offices. The questionnaires would address four disease states, each of which could be treated with drugs provided by the pharmaceutical manufacturer. The kiosks would be placed in waiting rooms and would replace current informational brochures found in the waiting rooms. These kiosks would offer interactive questionnaires about the four disease states, but their use by patients would be voluntary. Moreover, patients would be free to share or not share the information obtained from participating in the questionnaire with his or her physician. For those patients who wished to share the information, a printout with the results of the questionnaire would be available.

The proposed electronic questionnaires would not mention the manufacturer’s drug products or contain any advertisements or incentives for using the kiosks. Patient names would not be entered into the system, and the questionnaires would contain a privacy statement. The questionnaire would not mention any particular drugs, but would carry a small image of the requesting company’s logo and a copyright notice. Further, participating physicians would not be paid, nor would they pay the requesting company, for hosting the kiosks. The physicians whose waiting rooms would contain the kiosks need not have prescribed any of the requesting company’s drugs. Additionally, participating physicians would not be required to prescribe any such drugs. Finally, sales representatives of the requesting company would not have access to the database created by patient participation in the questionnaire.

The OIG opined that this arrangement would not generate prohibited remuneration under the federal anti-kickback statute, nor would it violate the federal statute prohibiting the giving of anything of value to a Medicare or Medicaid beneficiary to induce the person to use a particular provider of items or services for which the government pays. According to the OIG, the arrangement would not provide prohibited remuneration to the physicians whose waiting rooms would house the kiosks. The OIG found it unlikely that the questionnaires would save any appreciable amount of physician or staff time, and it did not believe that the kiosks would enhance the attractiveness of the participating physicians’ offices such that it would influence the selection of a particular physician by government beneficiary patients.  The OIG also opined that the kiosks would not have remunerative value to the patients because no incentives for using the kiosks would be offered. Additionally, the kiosks, while electronic, would be analogous to the paper brochures that are placed in physician offices at present. However, the OIG mentioned that it might have reached a different result if the kiosks were used to communicate any form of offer of remuneration to patients, such as coupons, gifts or services.

The OIG also noted with approval that the proposed arrangement included safeguards, such as a patient privacy protection, the fact that the names of patients would not be entered into the system, and that sales representatives would not have access to the database created by the questionnaires.

Full post as published by Louisiana Law Blog on July 14, 2008 (boomark / email).