Telehealth platforms that pay physicians a share of per-encounter revenue are drawing renewed federal attention to how those contracts are priced. The compensation formula behind a telehealth arrangement, not just the clinical work performed, can determine whether it runs into the Anti-Kickback Statute (AKS). A per-consult flat fee, paid at a set rate regardless of patient volume, sits on steadier legal footing than a percentage-of-collections or percentage-of-revenue arrangement that rises and falls with the encounters or prescriptions a provider generates. For any provider negotiating or renewing a platform contract, the fee structure is now a compliance question, not just a business term.
Two Ways Telehealth Platforms Structure Compensation
Telehealth platform contracts generally use one of two compensation models for the physicians, nurse practitioners, and physician assistants who see patients through the platform. The first is a per-consult flat fee, a fixed dollar amount paid for each completed encounter regardless of the patient's diagnosis, prescription, or whether the visit is billed to a federal health care program. The second is a percentage-based arrangement, where the platform pays, or collects, a share of the revenue, collections, or prescription volume tied to the encounters it facilitates. Platforms that also handle marketing or patient acquisition frequently favor the percentage model because it ties the platform's own revenue to growth in patient volume, the same pattern examined in Marketing Arrangements in Telehealth: Where Kickback Risk Concentrates.
Why Percentage-Based Fees Raise Anti-Kickback Exposure
The federal Anti-Kickback Statute, codified at 42 U.S.C. § 1320a-7b(b), makes it a felony to knowingly and willfully pay or receive remuneration in return for referring a patient for any item or service reimbursable under a federal health care program. Remuneration is defined broadly, and it reaches more than a direct cash referral fee. A compensation formula that rises or falls with the number of encounters, prescriptions, or dollars a physician generates can itself be remuneration for referrals, even when the contract labels the payment a marketing fee, an access fee, or a technology fee. The statute does not require that the platform call the payment a referral fee. It looks at whether the fee is tied to the volume or value of federally reimbursable business, which is why a percentage-of-collections arrangement carries materially more exposure under the anti-kickback statute than a flat per-consult rate, regardless of what the contract calls the payment.
A telehealth compensation formula that rises with the volume or value of referred encounters is remuneration under the Anti-Kickback Statute, whatever the contract calls the payment.
The Personal Services and Management Contracts Safe Harbor
The AKS safe harbor most relevant to telehealth platform contracts is the personal services and management contracts safe harbor at 42 C.F.R. § 1001.952(d). To qualify, the arrangement must be a signed written agreement of at least one year, must specify the exact services covered, and must pay compensation set in advance at fair market value through a methodology that ignores the volume or value of referrals. In OIG Advisory Opinion 25-03, issued June 6, 2025, the HHS Office of Inspector General approved a telehealth arrangement that paid clinical work hourly by provider type and administrative services at fair market value set by an independent third-party valuator, with neither component tied to referral volume. A straight percentage of encounter revenue for referral-adjacent services falls outside that protection. Many states separately restrict fee-splitting between physicians and non-physician platforms, a risk explored further in Practicing Across State Lines: Telehealth Licensure Enforcement, and a claim tied to a kickback-tainted referral can also carry false claims act liability and a recoupment demand covering the full billing period.
Why Early Legal Counsel Is Critical
It is critical that telehealth providers retain experienced healthcare defense counsel before signing a platform contract with a percentage-based or revenue-sharing fee structure, and immediately upon receiving a subpoena, audit notice, or other government inquiry about an existing arrangement. Early legal review can restructure a compensation formula to fit the personal services and management contracts safe harbor, flag provisions that read as remuneration for referrals, and preserve defenses before a fee dispute becomes a federal investigation. Delaying that review can significantly affect the outcome of a matter and expose the provider to unnecessary risk.
How Health Law Alliance Can Help
Health Law Alliance has advised healthcare providers for 25+ years on how their contracts, including telehealth platform agreements, hold up under the Anti-Kickback Statute and its safe harbors. Our telehealth law and telemedicine attorneys review platform fee structures before providers sign, negotiate percentage-based terms down to defensible flat-fee or safe-harbor-compliant models, and represent providers once a platform contract draws government attention, including when auditors pull prescribing records tied to the arrangement, as in When Auditors Pull Telehealth Prescribing Records. Contact Health Law Alliance for a free, confidential consultation.
