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Fierce Exclusive: As telemedicine grows, so do underlying fraud and abuse considerations

Although most telemedicine arrangements are exempt from Stark Law, changes in reimbursement could elevate kickback concerns

Touting accessibility and affordability, telemedicine is poised to make a huge splash in the healthcare industry in the coming years. The global telemedicine market is expected to reach 7 million patients worldwide by 2018, fueling an 18 percent growth rate by 2020.

The one thing holding it back: Reimbursement. Discussions surrounding telemedicine reimbursement peaked earlier this year as legislators debated whether to include reimbursement changes in the 21st Century Cures Act, which passed the House in July but has encountered roadblocks in the Senate. Although telemedicine reimbursement was ultimately left out of the bill, it does include provisions requiring the Centers for Medicare & Medicaid Services to report on barriers to telemedicine use, including reimbursement considerations.

Lingering beneath these discussions are ongoing considerations for fraud and abuse laws that could have a far-reaching impact if the federal government elects to reimburse for telehealth services. But even now, telemedicine agreements can be subject to federal kickback laws, particularly in situations involving referrals for other paid services, Kristi Kung (right), a senior associate at Pillsbury Winthrop Shaw Pittman LLP, said in an exclusive interview with FierceHealthPayer: Antifraud. Kung led a discussion on fraud and abuse in telehealth at the Fraud and Compliance Forum hosted by the American Health Lawyers Association in September.

"The common perception in the industry is that because telehealth is not totally reimbursed by Medicare, fraud and abuse issues like Stark Law and anti-kickbacks aren't a concern in these types of arrangements, and that's not always true," she says. "Even if the telehealth service itself is not reimbursable, the parties may still be in a position to refer other reimbursable healthcare items or services to one another."

Kung adds that telemedicine should not be viewed as a special service line, but as an alternate method of delivering traditional medicine through the use of technology. The same fraud and abuse laws apply, albeit with an added twist.

"There may be some interesting issues that come about because it's a telehealth arrangement and an electronic delivery, like privacy and security issues are more prevalent, but just because it's telehealth doesn't mean you need to look at fraud and abuse risks differently," she says.