The Department of Health and Human Services Office of Inspector General (OIG) issued Advisory Opinion No. 25-03 on June 11, 2025, addressing the application of the federal Anti-Kickback Statute (AKS) to a multi-party arrangement involving telehealth services, physician staffing, and administrative services. The opinion provides a favorable analysis regarding how management services organizations (MSOs) and professional corporation (PC) models can be structured to mitigate AKS risk, especially in the increasingly complex landscape of digital health and virtual care delivery.
Overview of the Arrangement
The requestor PC in Advisory Opinion 25-03 is a physician-owned professional corporation that operates in all 50 states and holds payer contracts covering commercially insured and Medicare Advantage populations. The requestor PC maintains a relationship with its own MSO for purposes of management and administrative services. Separately, many telehealth MSOs and affiliated PCs exist that operate for the purpose of providing virtual care.
As part of the proposed arrangement, the requestor PC would enter into agreements with a telehealth MSO and with the telehealth MSO’s affiliated PC (Platform PC) to lease healthcare professionals (HCPs). While the telehealth MSO’s affiliated practice employs or contracts with clinicians, they generally lack payer network participation. Thus, through the proposed arrangement, customers generated through the telehealth MSO’s efforts would be eligible to be seen by an in-network provider at requestor PC.
Pursuant to its agreement with the telehealth MSO, the requestor PC would pay the telehealth MSO a fee for non-clinical administrative services including marketing, scheduling, technology infrastructure, and billing. The requestor PC would separately pay the Platform PC a fixed hourly rate for the services of licensed HCPs.
The requestor certified in its advisory opinion request that the methodology for determining the fees paid to both the telehealth MSO and the Platform PC would be set in advance, consistent with fair market value (FMV), and would not vary based on the volume or value of any referrals or other business generated between the parties. The requestor further certified that the agreements would comply with the personal services and management contracts safe harbor of the AKS.
OIG’s Analysis Under the Anti-Kickback Statute
The OIG acknowledged that the proposed arrangement implicates the AKS, which prohibits the knowing and willful offer, payment, solicitation, or receipt of any remuneration to induce or reward referrals of items or services reimbursable by federal healthcare programs. However, the OIG ultimately concluded that the arrangement would not pose a risk of fraud and abuse under the AKS, provided the facts and representations were accurate, as the arrangement would satisfy the personal services and management contracts safe harbor.
Several factors were critical to the OIG’s favorable determination. First, the use of independent third-party valuation to set the hourly lease rate for HCPs and the administrative service fees supported the conclusion that payments were not intended to be remuneration for referrals. Second, the arrangement separated the clinical function (provided by the leased HCPs) from the administrative infrastructure (provided by the MSOs), reinforcing that each party will receive appropriate compensation for discrete services. Third, the payment obligation was not contingent on collections or reimbursement from payors, thus eliminating a common source of AKS risk. The requestor PC indicated that it would pay the hourly fee regardless of whether it received reimbursement for the services rendered by the leased HCPs. This factor (financial risk) is also important to assessing the likelihood that an arrangement is not a suspect joint venture, ineligible for safe harbor protection.
Implications for Telehealth Platforms and MSO-PC Models
Telehealth platforms frequently operate through MSO-PC structures to navigate state corporate practice of medicine laws while scaling their service footprints. In these models, the MSO typically provides non-clinical services to the affiliated PC, which is owned by licensed clinicians and employs or contracts with HCPs. Advisory Opinion 25-03 indicates that such arrangements can be legally viable if constructed carefully, with particular attention to payment methodology, role delineation, and FMV documentation.
However, this favorable opinion must be interpreted narrowly. Although an OIG advisory opinion is not binding on parties other than the requestor, the analysis in this particular opinion was succinct. OIG did not evaluate the commercial reasonableness of engaging the HCPs for purposes of treating the telehealth MSO’s referrals, or the requestor PC’s engagement of a secondary MSO (rather than using its existing MSO). Accordingly, stakeholders should exercise caution when extrapolating from this opinion, as it provides more limited utility in predicting the permissibility of arrangements that diverge in any material respect from the facts presented.
Conclusion
OIG Advisory Opinion 25-03 provides meaningful regulatory guidance for healthcare organizations utilizing MSO-PC models and telehealth staffing arrangements. By affirming that a telehealth platform can lease its clinicians to a separate PC and provide administrative support without violating the AKS, so long as safe harbor protections are satisfied, the OIG has outlined a path forward for legally compliant and scalable virtual care delivery. While this opinion may encourage digital health companies to revisit their contractual structures and compliance protocols, they should do so with an understanding of the opinion’s limitations. If you operate or are developing a telehealth MSO model, contact Frier Levitt for tailored guidance to ensure regulatory compliance.
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