- A healthcare provider offering free telemedicine equipment to a county health clinic for use in HIV treatment and support services won’t be sanctioned under federal anti-kickback laws, according to the Health and Human Services Department’s Office of the Inspector General.
The OIG opinion, issued May 24, indicates there are enough safeguards in place to ensure that the unnamed health system isn’t receiving patient referrals from the unnamed clinic in return for the telemedicine equipment. Among other things, the OIG noted, the clinic is 80 miles away from the health system.
This is the fifth such opinion handed down by the OIG with regard to anti-kickback laws and telehealth, all of which have supported the telehealth transaction.
Nate Lacktman, a digital health expert who chairs the Telemedicine Industry Team at the law firm of Foley & Lardner, said the decision mirrors an earlier OIG ruling in which a health system gave free telemedicine equipment to certain community hospitals to establish a telestroke network.
“In this new Advisory Opinion, OIG focused on how the specific terms of the arrangement include a number of safeguards to reduce the risk of patient steering and kickbacks, notwithstanding the fact that the provider would give free telemedicine technology to the county health clinic,” he said. “OIG concluded that the nature of the services (HIV prevention care) were an important public health benefit, and that the telemedicine services would not likely cause inappropriate steering to the provider’s affiliated pharmacy because the pharmacy was located 80 miles from the county health clinic.”
According to the OIG report, the health system, described as a “not-for-profit federally qualified health center look-alike,” is proposing to furnish a county health clinic with a laptop or computer with high-quality speakers, webcam, microphone, telemedicine camera and videoconferencing software. That equipment would be used to set up a telehealth program to treat patients with HIV.
The report notes that the health clinic would use the equipment to enable patients to meet with specialists who could prescribe medications for pre-exposure prophylaxis (PrEP) and post-exposure prophylaxis (PEP). Under terms of the arrangement, the clinic would not have to refer patients to the provider for consultations and any follow-up, and could set up telemedicine encounters with any qualified providers.
The arrangement further notes that prescriptions can be filled out at any qualified pharmacy, not necessarily the pharmacy associated with the provider. In his review of the OIG opinion, Foley said that arrangement could have run afoul of anti-kickback laws if the provider’s affiliated pharmacy was a mail-order pharmacy that could deliver the medications to the patient’s door.
While noting the arrangement won’t induce the clinic to refer patient to either the provider or its affiliated pharmacy, the OIG report also noted the telehealth program won’t likely inappropriately increase costs to federal healthcare programs, and would likely improve access to care for patients and, possibly, clinical outcomes.
“Although both the County Clinic and the Provider might benefit from the Proposed Arrangement, the primary beneficiaries would be certain County Clinic patients who, through the use of the Telemedicine Items, could receive HIV prevention services more conveniently and efficiently,” the report noted. “The Proposed Arrangement likely would improve access to HIV prevention services for the County Clinic’s patients, which is especially important in PEP administration, where the medication must be taken within 72 hours after exposure to HIV.”
The OIG’s decision continues a trend of federal approval of telehealth and telemedicine programs that use free or grant-funded technology to improve patient access and outcomes. But the fact that the OIG is weighing in on the matter also highlights the government’s interest in cracking down on inappropriate business arrangements, including Medicare and Medicaid reimbursements.