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OIG Advisory Opinion Permits Donation of Telemedicine Items and Services

Written by Brian Dunphy, Karen Lovitch, and Stephanie Willis

In a recent advisory opinion, the OIG allowed a hospital to share telemedicine resources with another hospital, in the interest of promoting new models of consultation and improving patient care by reducing unnecessary patient transfers.

In the opinion, the OIG gave the green light to a proposed arrangement which involved donation of certain items and services by a nonprofit hospital with a comprehensive stroke center (the “Stroke Center”) to community hospitals to facilitate telemedicine consultations in stroke cases.

Key elements of the proposed arrangement include:

  • the provision of neuro emergency telemedicine technology, clinical consultations, clinical protocols, training, and medical education as well as acceptance of neuro emergency transfers;
  • consultation, in real time, with the community hospital’s emergency department physicians through a web-enabled stroke treatment consultation tool with audio-visual capabilities (rather than via telephone); and
  • around-the-clock access to the Stroke Center’s expertise, via both telephone and telemedicine, including patient examination via telemedicine and review of CT scans performed in the community hospital’s emergency department.

The donation would allow community hospitals to treat acute stroke cases and other neuro emergencies on the spot and thus avoid transferring the patient at a time when immediate care is necessary.  In addition to reducing unnecessary transfers and ensuring that patients receive immediate and effective care, the proposed arrangement would lower the costs of care by using the resources of the community hospital and would free up resources for patients who require the level of care provided by the Stroke Center.

The OIG recognized that the Stroke Center and the community hospitals are potential sources of federal health care program referrals for each other but still concluded that the risk of an improper payment for referrals was low based on the following facts and circumstances:

  • the proposed arrangement would not require the community hospitals to make referrals to the Stroke Center;
  • neither the volume nor value of actual or potential referrals would influence the Stroke Center's selection of participating hospitals;
  • the proposed arrangement would be unlikely to generate additional referrals to the benefit of the Stroke Center or the community hospitals but instead would benefit patients; and
  • neither party would be required to market on behalf of the other, and each would bear its own costs for any marketing activities.

This advisory opinion is of interest because it permits the Stroke Center to provide items and services of significant value to community hospitals, which are a source of referrals for the Stroke Center.  Even though the proposed arrangement would not require such referrals, they likely would occur.

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Authors

Brian P. Dunphy is a member of the Health Care Enforcement & Investigations Group at Mintz. He defends clients facing government investigations and whistleblower complaints regarding alleged violations of the federal False Claims Act. Brian also handles commercial health care litigation.

Karen S. Lovitch

Member / Chair, Health Law Practice

Karen S. Lovitch is a Mintz attorney who represents health care companies in regulatory, transactional, and operational matters. She advises them on health care regulations such as the Stark Law and the Clinical Laboratory Improvement Amendments of 1988.