Telemedicine Agreements: FMV, Commercial Reasonableness Compliance in Compensation Arrangements

An April 2018 OIG report on unwarranted Medicare reimbursement to providers of telehealth services highlights the government’s interest in compliance by telemedicine providers. While the OIG has provided guidance regarding telemedicine service arrangements in Advisory Opinions addressing telemedicine compensation arrangements, the number of and content in such opinions is limited.

Telemedicine service lines may implicate the Stark Law and the Anti-Kickback Statute as well as federal tax law. As a result, the compensation arrangements between the healthcare facilities and the physicians or other medical professions will need to contain commercially reasonable terms and offer payment that is consistent with fair market value (FMV).

The continued growth of telemedicine as a means to provide high quality and cost-effective healthcare underscores the need for healthcare counsel to understand the issues surrounding commercial reasonableness and FMV as they relate to compensation for telemedicine services.

Listen as our authoritative panel briefly discusses compensation arrangements between healthcare facilities and telemedicine service providers, and the laws those relationships implicate. The panel will examine the various ways in which common telemedicine arrangements require commercial reasonableness and FMV requirements to be met. The panel will also discuss the process and requirements associated with FMV and commercial reasonableness opinions related to telemedicine arrangements.

1. Key developments related to the telemedicine industry
2. Outline of the standard types of telemedicine service arrangements
3. Laws those arrangements implicate
4. Commercial reasonableness and FMV requirements
5. OIG opinions related to telemedicine arrangements
6. Opinions of commercial reasonableness in the telemedicine context
7. Key considerations for telemedicine FMV analyses

The panel will review these and other important issues:

• When should counsel consider whether the contemplated telemedicine arrangements meet one of the applicable Stark exceptions and/or AKS safe harbors related to service arrangements?
• What are the factors involved when evaluating the commercial reasonableness of the telemedicine service arrangement?
• How can counsel assess the FMV of compensation in a telemedicine service agreement?