Anti-kickback and fee-splitting rules for cash-pay telehealth marketing
Cash-pay telehealth brands grow on affiliates, creators, and partner deals. The federal Anti-Kickback Statute mostly does not reach them — but the state laws that do are broader than most marketing teams realize.
Lithos StaffThe federal Anti-Kickback Statute applies to items and services paid for by federal healthcare programs, so a purely cash-pay program is largely outside it. What does apply: state all-payer anti-kickback and patient-brokering laws (Florida, Texas, and others cover cash patients), state fee-splitting prohibitions that bar clinicians from sharing professional fees with people who refer patients, corporate-practice-of-medicine rules, and FTC advertising law. The clean structure separates the brand’s marketing spend (flat fees, CPM, fixed-fee affiliate payments for marketing services) from the medical group’s professional fees, which never flow to referrers. Per-patient or per-prescription bounties paid for clinical revenue are the pattern to avoid.
Start with what does not apply
The federal Anti-Kickback Statute is the law most marketing teams have heard of, and it is the one least likely to reach a cash-pay program. It criminalizes knowingly offering or receiving remuneration to induce referrals of items or services paid for, in whole or part, by a federal healthcare program. No Medicare, Medicaid, TRICARE, or other federal-program dollars, no federal AKS exposure — with two cautions. First, a single federal touchpoint (a lab test billed to Medicare, a patient whose supplies are federally reimbursed) can pull the statute back in. Second, the practices the federal statute targets are precisely the ones state law reaches anyway.
What does apply to cash-pay
- State all-payer anti-kickback laws. Many states have their own statutes and a number of them apply regardless of who pays. Florida’s Patient Brokering Act and Texas’s patient-solicitation law are the best-known examples; both reach cash-pay arrangements and both carry criminal penalties.
- Fee-splitting prohibitions. Most states bar licensed clinicians from splitting professional fees with anyone who refers patients. See fee splitting. Percentage-of-revenue deals between a medical group and a marketer are the classic violation.
- Corporate practice of medicine. The CPOM doctrine is what makes the brand-versus-medical-group structure necessary in the first place; it also constrains who may profit from professional fees.
- FTC advertising and endorsement rules. Creators must disclose material connections; health claims must be substantiated. Compounded-product claims get particular scrutiny.
- Telemarketing and messaging law. TCPA for texts and calls; state telemarketing registration where applicable.
The structure that works
The durable pattern separates two streams of money. The brand (an MSO or consumer company) spends on marketing the way any consumer company does: it pays creators, affiliates, and ad platforms for marketing services at fair market value. The medical group collects professional fees for care and pays the brand a fair-market-value management fee for services rendered — not a percentage that tracks referrals, and never a bounty per patient acquired. Referral payments come out of marketing budget, are measured in marketing units, and do not touch the clinical fee.
| Arrangement | Generally defensible | Generally not |
|---|---|---|
| Creator sponsorship | Flat fee or CPM for content, with FTC disclosure | Payment per prescription written |
| Affiliate program | Fixed fee per qualified marketing lead, paid by the brand | Share of the medical group’s professional fees |
| Clinic or gym partnership | Co-marketing at fair market value; flat space or service fees | Per-patient referral bonus |
| Patient refer-a-friend | Modest, non-cash or fixed credit, within state limits | Cash rewards scaled to spend in patient-brokering states |
| Brand ↔ medical group | Fair-market-value management fee, documented | Percentage of clinical revenue with no FMV support |
A five-question review for any partner deal
- What is the payment for — marketing services, or patients?
- What is it measured by — impressions and leads, or prescriptions and professional fees?
- Which entity pays — the brand’s marketing budget, or the medical group?
- In which states are the patients, and do any have patient-brokering or all-payer statutes?
- Can we document fair market value and the disclosure the FTC expects?
None of this is a reason to stop doing partner marketing. It is a reason to structure it so the growth engine and the clinical entity are visibly separate on paper, which is also what makes the business easier to sell or raise on later.
Frequently asked questions
Does the Anti-Kickback Statute apply to cash-pay telehealth?
The federal statute covers remuneration intended to induce referrals of items or services reimbursable by a federal healthcare program. A program that bills no Medicare, Medicaid, or other federal program is largely outside it — but state laws, fee-splitting rules, and FTC rules still apply, and any federal-program touchpoint (a covered lab test, a Medicare patient) pulls the federal statute back in.
Can we pay influencers per signup?
Paying a creator for marketing services is normal; the risk is in how the payment is measured and what it is paid from. Flat fees, CPM, or fixed per-lead fees paid by the brand for marketing are the conventional structure. Payments measured by prescriptions written or by professional fees, or paid out of the medical group’s clinical revenue, are what state anti-kickback and fee-splitting laws target.
What is fee-splitting?
A state-law prohibition on licensed clinicians sharing their professional fees with anyone in exchange for referrals or patients. It sits alongside the corporate-practice-of-medicine doctrine and is why the medical group’s revenue must be kept separate from marketing and referral payments.
Do these rules apply to the medical group or to the brand?
Both, differently. Fee-splitting and CPOM rules attach to the clinicians and the medical group. Patient-brokering and all-payer anti-kickback statutes can reach anyone who pays or receives the remuneration, brand included. FTC advertising rules attach to whoever makes the claim.
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