Telemedicine and Potential Tax Implications for Tax-exempt Providers

This article first appeared in Becker’s Health IT & CIO Review.

It is hard to believe that telemedicine has been a clinical reality for almost 60 years, if you count from the literally space-age technologies NASA developed to monitor astronauts' health in the 1960s.

Physician/technician collaboration expanded in following years with programs like NASA's Space Technology Applied to Rural Papago Advanced Healthcare (STARPACH) program, which linked paramedical professionals on the remote Papago Indian Reservation with doctors in Phoenix and Tucson via two-way microwave audio and video link. And in 1999, telemedicine pioneer Medical Missions for Children was founded, an entity that now serves children in remote areas in over 100 countries.

Now telemedicine has both expanded in availability and contracted to a more local level, becoming an important part of many hospitals, home health agencies, private physician practices, as well as our homes. In 2015, according to the American Telemedicine Association, more than 15 million Americans received some type of remote medical care via technologies such as remote monitoring, video conferencing with physicians and smart phone chronic disease management apps.

It may be even harder to believe, then, that in those 60 years, the Internal Revenue Service (IRS) hasn't yet settled on a way to tax telemedicine – a lingering question that exposes the providers exploring it to potential audit and accounting risks.

A clear benefit to care and costs ... with less-than-clear tax implications
Telemedicine has become an increasingly relevant business driver because its benefits complement the demands of an era of digital advances, increased consumerism by patients, and pressure to reduce overall healthcare costs. It can reduce wait time, travel time and stress levels for patients; facilitate lower-cost preventive care and chronic care management; and allow specialty services to be more broadly distributed to new patients by (virtually) bringing specialists to remote and rural areas.

Yet the potential tax implications from both the Federal and states' perspectives are unclear, particularly as they relate to unrelated business income (UBI). The IRS defines UBI as income from a trade or business that is regularly carried on by a tax-exempt organization and that is not substantially related to the organization's exempt purpose.

To date, the IRS has not issued any guidance or rulings regarding telemedicine UBI, specifically. For now, tax-exempt healthcare organizations participating in telemedicine are subject to the IRS rules and principles that apply more broadly to UBI and healthcare activities – some of which, frankly, don't neatly fit, and some of which require careful documentation to avoid triggering UBI status.

Traditionally, the IRS has focused on whether an individual is receiving a healthcare service or an ancillary service. Healthcare services to individuals are considered substantially related to a hospital's exempt purposes. On the other hand, if the service is an ancillary service such as diagnostic lab testing or the provision of pharmaceuticals, then the income is excluded only if the person is a patient of the hospital, and then this is based upon an exception to UBIT for the convenience of the hospital's patients. There are also exceptions for casual sales or services to small hospitals at or below costs.

What makes a patient ... a patient?
Interestingly, most of the tax uncertainty of UBI comes not from the definition of "telemedicine" but from the formal definition of "patient." IRS Revenue Ruling 68-376 defines a patient as:
  • A person admitted to a hospital as an inpatient
  • A person receiving emergency or preventive health services from outpatient facilities of a hospital
  • A person referred to a hospital's outpatient diagnostic facilities for a specific diagnostic procedure. The procedure is administered by a hospital-based practitioner affiliated with the hospital.
  • A person refilling a prescription written while in the course of treatment at the hospital
  • A person receiving medical care in a hospital affiliate
  • A person receiving care in his home where the services are rendered by, and under the supervision of, the professional staff of the hospital as an extension of its inpatient and outpatient care
In this current definition, the operative theme appears to be either that the person is or has been physically in the hospital or an affiliate, or that the person is receiving care or treatment by a hospital professional. Therefore, the question becomes whether the person receiving remote care delivered by a hospital physician or hospital professional becomes a patient of the hospital or, more significantly, is the service being provided considered substantially related to the hospital's healthcare mission.

In telemedicine, of course, the entire point is often to deliver care outside the traditional setting.

Given the uncertainty, tax-exempt healthcare organizations must be diligent in documenting how the care provided meets the organization's exempt purpose by:
  • Maintaining detailed medical records
  • Showing how the organization is serving the needs of the community
  • Documenting any direct interaction between physicians and the patient, or Written Treatment consent (provided or secured or authorized)
Another piece of evidence may be whether the malpractice insurance covers the activity.

Further, state-level definitive tax guidance has not been issued in this area. Currently, as the Federal government is doing, states are following traditional rules in regards to UBI. From most states' perspective, if any of the telemedicine activity generates UBI and crosses state lines, the income may require apportionment among the states based on activity in the respective states and the hospital may have to file a tax return in that state. The organization needs to address where the sale of the personal services occurs, where the patient is located, and where the services are being performed. Some states look to where the cost of performance are incurred, and other states look to where the time is spent performing the services in determining if there is nexus and requirements to report items in those states. While the provision of a cyber space consultation may be considered related to exempt purposes, questions could arise as to whether the sale of pharmaceuticals to the out of state patient create UBI and also, whether the sales are subject to sales tax.

The traditional patient and non-patient criteria for determining UBI is dated, both the IRS and the states need to reexamine the definitions of a patient as well as the definition of providing healthcare services.