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For an independent practice, an EHR or billing agreement can affect operations well beyond the monthly fee. Before you sign, review how the arrangement intersects with provider enrollment and credentialing, and check whether any financial incentive connects to referrals or federal healthcare program business.
What the Anti-Kickback Statute covers
The federal Anti-Kickback Statute (AKS) is a criminal law that prohibits knowingly and willfully offering, paying, soliciting, or receiving remuneration to induce or reward referrals or other business involving items or services reimbursable by a federal healthcare program. It applies to both sides of the arrangement.
Safe harbors protect certain arrangements when they meet the applicable requirements. As HHS Office of Inspector General (OIG) explains, failing to meet a safe harbor does not automatically make an arrangement unlawful. But partial compliance does not qualify for safe-harbor protection; regulators assess the full facts and circumstances, including intent.
Vendor terms that deserve a closer look
A vendor relationship may receive scrutiny when something of value appears tied to business generation. Look closely at:
- “Free” or below-market EHR or practice-management technology, especially when the offer appears linked to referrals.
- Billing or marketing fees calculated around referrals or federal program business.
- Equipment discounts tied to volume, revenue-sharing arrangements, or gifts to referral sources.
- Contract terms requiring your practice to use a specific lab or imaging provider.
- Incentives that reward clinicians for ordering, referring, or steering patients.
A percentage-based fee is not automatically a violation. Its structure, purpose, and relationship to referrals matter. The label on the invoice does not settle the question.
Safer contract review: four practical checks
- Put the full arrangement in writing. Describe the services, technology, fees, term, and any additional benefits. Make sure related documents do not introduce undisclosed incentives.
- Document fair-market-value analysis. Keep support for how the price was set and why the services make business sense. Fair-market-value pricing is useful, but it is not, by itself, a defense or safe harbor.
- Pay for services actually delivered. Define the work and tie compensation to that work, not to referrals or the volume or value of federal program business.
- Test any safe harbor against all its conditions. The personal-services safe harbor has specific requirements, including a written agreement, a term of at least one year, compensation methodology set in advance, and limits on referral-linked compensation. The EHR safe harbor has its own conditions for donated technology, including interoperability, written documentation, a recipient contribution generally equal to 15% of the donor’s cost, and no donor financing of that contribution. Review the current 42 C.F.R. § 1001.952 rather than assuming a vendor’s standard contract qualifies.
An illustrative example
A practice receives discounted EHR software, but the agreement also asks clinicians to steer patients to a named imaging provider. The discount and referral language need separate scrutiny. The software’s price does not make the steering term safe.
Veracity Take
Before signing, ask: “Is anything here paid for or conditioned on referrals?” If the answer is unclear, pause. Loose paperwork paired with referral-linked terms creates a serious risk signal, not proof of a violation, but a reason for a closer review.
For context on how administrative gaps can affect operations, see our article on provider enrollment delays. Then have experienced healthcare counsel review the complete vendor arrangement before signing. This article is educational information, not legal advice.
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