Digital provider marketplaces—platforms that let patients search for, compare, and book appointments with clinicians much like travel websites help users find flights or hotels—are becoming a primary entry point into the health care system. These businesses typically earn revenue through listing fees, per-booking charges, or enhanced visibility for providers. But those payment models raise a familiar regulatory question: when is a platform selling advertising, and when is it selling a prohibited referral?
Two federal court decisions this year narrowed Anti‑Kickback Statute (AKS) risk for digital marketplaces selling neutral advertising or charging per‑booking fees, but these cases did not preempt the state‑law minefield that still governs how these platforms get paid. In United States v. Sorensen, the Seventh Circuit overturned an AKS conviction and emphasized that paying marketing companies with no real power to influence prescribing looks like paying for advertising, not referrals. That same day, the Second Circuit upheld the dismissal of a whistleblower case in United States ex rel. Sisselman v. Zocdoc Inc. because Zocdoc had obtained favorable HHS-OIG advisory opinions on its model, undercutting any claim that it knowingly violated the AKS or the False Claims Act. Together, these outcomes give digital platforms comfort that neutral advertising, per-booking “new patient” fees, and clearly labeled sponsored placements can satisfy federal requirements when physician independence is protected and patients are not improperly influenced.
But complying with the AKS is not a hall pass under state law. Many states enforce their own “all-payer” anti-kickback rules, bans on sharing professional fees with non-physicians, and strict corporate practice of medicine (CPOM) doctrines that are often broader—and sometimes stricter—than federal law. A model that works under federal safe harbors may still be prohibited at the state level.
Explicit Internet Carveouts (e.g., California)
California is unusually explicit about making room for digital health. One of its rules says that “internet-based advertising” and “online appointment booking” are generally allowed if the service is neutral. Neutral means the service can host profiles, search tools, and booking buttons, but it cannot hold itself out as recommending or endorsing one doctor over another. A marketplace can help patients find care but cannot function as a paid matchmaker.
That approach lines up with recent federal guidance, which sees relatively low AKS risk in models that charge flat or per-booking listing fees and sell clearly labeled sponsored placements, so long as everything is transparent and the platform does not quietly steer patients toward the highest payer.
But that internet carveout covers only part of the puzzle. California also has a separate rule aimed at people and companies paid for referring patients to particular doctors or clinics, and that rule does not have the same explicit “internet services” exception. This means a platform may comply as an online advertiser but still run into trouble if its broader business model resembles a paid referral arrangement.
On top of that, California’s CPOM doctrine presents another hurdle. The state is wary of non-physician platforms sharing in visit- or collections-based revenue because that gives them a stake in what services get promoted and booked. And when a site also controls scheduling—what providers, visit types, and time slots are available—it can start to look like the platform is operating the medical practice itself, where CPOM concerns are sharpest.
Generic “Advertising” Exceptions (e.g., Texas)
Texas draws a hard line against paying for patient referrals, but it also makes clear that it is not trying to outlaw ordinary, truthful advertising. That leaves room for digital marketplaces to sell visibility—profiles, search results, and branded pages—so long as what is sold looks like advertising rather than paid steering. Texas also tends to move in step with federal AKS. When a marketplace resembles models that HHS-OIG has already approved—neutral listings, transparent per-booking or subscription fees, and clearly labeled “sponsored” placement—it is easier to argue that the platform is selling marketing and technology, not referrals.
A “health care information service” safe harbor that may appear relevant is written for phone hotlines, so most web- and app-based marketplaces do not fit neatly inside it. And Texas regulators remain skeptical of percentage-of-collections deals or deep revenue-sharing with non-physician platforms, especially when paid placement directs patients toward top-paying providers. In practice, the safer path is flat or tiered fees, neutral search criteria, and sponsorship that is clearly disclosed.
Strict/No‑Carveout Regimes (e.g., New York)
Some states take a strict approach to any money changing hands around patient referrals and do not offer explicit “online advertising” carveouts. New York is a leading example. Its professional rules deem it unethical for a physician to pay any fee to a third party for sending patients their way, and regulators are equally suspicious of arrangements where a non-physician company takes a percentage of a practice’s revenue. For these regulators, that starts to look less like paying for marketing or technology and more like sharing in professional fees or buying patient access.
New York courts have reinforced that view, warning that management contracts, MSO deals, or “earn-outs” tied directly to clinical receipts can cross the line into prohibited fee-splitting or an impermissible CPOM. In practical terms, a digital marketplace that takes a cut of every visit, shares in collections, or ties compensation tightly to patient volume is on much thinner ice in New York than under federal AKS, even if the structure fits within OIG guidance. The safest designs rely on flat or tiered service fees, defined marketing deliverables, and clear separation from clinical operations, with extreme caution around per-booking or revenue-share models in strict states.
Conclusion
Digital provider marketplaces are right to take comfort from Sorensen and Sisselman: when platforms sell true advertising, preserve physician independence, and maintain transparency around fees and sponsored placement, federal AKS risk can be managed. But that is only half the story. The real challenge is the patchwork of state rules—kickback provisions, fee-splitting bans, and CPOM doctrines—that can turn an AKS-clean model into a non-starter in particular jurisdictions. The platforms that succeed long term will be those that build for this reality up front, creating business models that scall across states rather than unravel on impact.
Kelly Hagemann
Kelly Hagemann is a partner at Michelman Robinson, a Los Angeles-based law firm, with additional offices in Irvine, San Francisco, Dallas, Houston, Chicago, New York, and London. Operating out of the firm’s Irvine location, Kelly is a litigator whose practice focuses on the behavioral healthcare industry. She can be contacted at (714) 557-7990 or [email protected].
Nicole Benalcazar
Nicole Benalcazar is an associate in MR’s Los Angeles office and member of the firm’s Commercial & Business Litigation Practice Group. She can be reached at (310) 299-5500 or [email protected].
