Legal: Tread lightly with telehealth prescriptions

A.  There is a good chance the prescription issued will not be valid, and the payment for the telehealth encounter could be problematic under an anti-kickback statute.     

In order for a prescribing practitioner, such as a physician, physician assistant, or nurse practitioner, to issue a valid prescription, the practitioner must first establish a practitioner-patient relationship. Most states now allow a practitioner to establish this relationship by way of a telehealth encounter. But most states also specify that a satisfactory telehealth encounter must involve technology that enables real-time, two-way, audio-visual communications. So, in these states, an initial encounter between a prescribing practitioner and a patient that occurs over the telephone is not sufficient to establish a practitioner-patient relationship. And a prescription issued in the absence of an adequate practitioner-patient relationship is not valid.

Even if the prescription is valid, the Federal Anti-Kickback Statute (AKS) prohibits a supplier from giving a person something of value to induce the person to purchase an item covered by a federal health care program. Further, all states have their own AKS, and some states have an AKS that applies regardless of how the item is being paid for (e.g., Medicaid, commercial insurance, cash). So if a DME supplier or its marketing company pays the cost of a practitioner visit, this could be seen as an inducement for the patient to purchase the prescribed item from the DME supplier in violation of an AKS.

Arrangements involving telehealth encounters arranged and paid for by a DME supplier or its third-party marketing company should be scrutinized closely.