The COVID-19 pandemic has led to a paradigm shift in the world of telehealth medicine. Federal rules and regulations, which historically limited Medicare telehealth visits to beneficiaries living in rural areas, have been temporarily relaxed or lifted with one goal in mind: to provide Medicare beneficiaries with greater access to health care while containing the spread of the virus. Among other sweeping changes, providers may now waive Medicare beneficiaries’ copays and deductibles in certain instances, where such waivers likely would have been deemed an impermissible “kickback” prior to COVID‑19. Telehealth care is also no longer limited to beneficiaries residing in rural areas; instead, physicians can now provide telehealth services to Medicare beneficiaries regardless of their location. These are just two examples of the many efforts aimed at expanding reimbursements for telehealth services.
Unsurprisingly, the relaxation of telehealth rules and regulations has led to an explosive growth in virtual care. On April 28, 2020, the White House announced that “[d]ata shows that telehealth utilization is increasing because of new flexibilities for the provision of Medicare telehealth services and potentially because of the Department of Health and Human Services’ (HHS) policy change that allows providers to use popular video platforms to connect with patients.” The announcement went on to state that the “rapid growth in telehealth shows how this technology can help the American health care system meet patients’ needs during a national emergency.”
But with this explosive growth will likely come a wave of fraud and abuse schemes by nefarious actors trying to leverage the more lenient standards. Consequently, we will likely see an uptick in post‑pandemic federal investigations and enforcement actions. U.S. Attorney General William Barr announced in March that “it is essential that the Department of Justice (DOJ) remain vigilant in detecting, investigating and prosecuting wrongdoing related to the [COVID‑19] crisis.” Barr tasked every U.S. Attorney’s Office with making these efforts a priority.
Telehealth is also not a new source for government fraud investigations. Indeed, last year, the DOJ announced one of the largest telehealth fraud schemes ever investigated and prosecuted by the federal government, with more than $800 million in purported losses and criminal charges against dozens of physicians, medical professionals and others. Three executives involved in this scheme have already pleaded guilty, with one physician ordered to pay over $7 million in restitution. In a separate case, a New Jersey physician recently pleaded guilty to a $13 million health care fraud conspiracy with telehealth companies. Elsewhere, an anesthesiologist was indicted last year for allegedly conspiring to submit fraudulent health care claims related to telehealth medicine.
So what actions should providers of telehealth services take to avoid becoming the latest headline on the DOJ’s website? Put simply, now more than ever, providers must exercise caution and due diligence. Here are a few things to consider:
- Relaxed Regulations are Temporary and Changing. The relaxed regulations are retroactive to March 1, 2020, and will only last through the end of the public-health emergency absent further government action. In other words, as of now, the revised regulations pertaining to telehealth services are temporary. Providers must stay informed and should regularly visit Centers for Medicare and Medicaid Services (CMS), the Office of Inspector General, HHS and other sources for the latest updates. Guidance is changing, and we should expect more to come. Providers of telehealth services should also ensure that they are complying with specific state and local laws, and that they are adhering to the requirements of all payers with whom they participate.
- Ensure Accurate Billing and Proper Documentation. Providers should exercise caution when billing for telehealth services, and consider performing regular self-audits or other internal “checks and balances.” Different coverage rules apply depending on the payer billed for the services and the services rendered. When telehealth services are furnished, providers should maintain the proper documentation, establishing that the services billed for were both rendered and medically necessary.
- Beware of Upcoding and Unbundling. Medical coders must remain diligent and assure they are not assigning codes for more expensive services or procedures than those that were actually rendered. Medicare requires certain services or procedures to be billed together, or “bundled.” When those certain services or procedures are billed separately, or “unbundled,” it can often give rise to fraud allegations under the federal False Claims Act.
- Be Cautious When Marketing Telehealth Services. Providers should exercise caution when marketing for telehealth services. While informing beneficiaries regarding telehealth visits is permissible (for now), CMS has not given providers carte blanche permission to solicit patients for services. The bottom line rule has not changed: providers may only bill Medicare for services that are both rendered and medically necessary.
- Identify Discrepancies Regarding Evaluation and Management Services Versus Virtual Check‑Ins and E‑Visits. Providers must be wary not to blend visit types when billing for virtual care. Until now, evaluation and management (E&M) services required face-to-face encounters, and virtual check‑ins/e‑visits were rendered by way of telehealth technology. However, with the expansion of telehealth services comes the ability for providers to render E&M services via telehealth technology. Such services, however, will not include the exam component, and there will likely be heavier reliance on (1) elapsed time and (2) medical decision-making as the driving forces for code selection. Telehealth visits tend to be shorter in duration than in‑person visits, and thus the billed time will also likely be lower. If billing for higher levels of services, the medical decision-making portion of documentation should reflect that higher levels of services were actually rendered. This is not just under the guise of complying with the federal government. Commercial payers will likely also struggle with how to adjudicate the proprietary of billed telehealth claims. As noted above, care should be taken to ensure visits are appropriately documented and providers should seek clear guidance, develop sound internal policies, educate themselves and their staff and continue to internally monitor and audit to minimize risk of overpayment.
- Update Compliance Programs to Address the Acceleration of Telehealth. For any providers submitting claims to the government, compliance programs will have to be updated to account for the breadth of telehealth services being provided. In short, providers will need to update policies and procedures to include telehealth options, or revise existing policies pertaining to the appropriate equipment, how to obtain consent and how to properly document telehealth services. Compliance programs will also likely need to be updated to address applicable state regulations, prescribing guidelines and adjustments to billing and coding. Regarding auditing and monitoring, work plans will likely need to be updated to include telehealth billing and coding, privacy/security, provider and biller/coding training and HIPAA compliance. Larger health systems and academic medical centers will also likely need to address how to widely communicate and implement their telehealth compliance programs.
- Be Prepared to Repay Overpayments. If providers of telehealth services later discover that they received an overpayment from the federal government, failing to return it may result in criminal and civil penalties. Specifically, the FCA may subject a person or entity to criminal or civil penalties where such person knowingly presented or caused to be presented a false claim to the United States government for payment. While traditional FCA litigation stems from a provider’s receipt of a government payment following the submission of a knowingly false claim, providers may also be on the hook for violating the FCA if they wrongfully retain federal overpayments that should have been paid back to the government.
Warner Norcross + Judd’s health care team understands your industry, and we are ready to help you navigate health care fraud and abuse laws and regulations in implementing your business goals. Additionally, our health care litigation team is here for providers and entities facing a dispute. Our experienced attorneys will guide you through the entire litigation process, from pre‑dispute strategy planning to resolution. Our team has helped resolve countless disputes, including matters arising under the federal and state False Claims Acts, anti-kickback statutes, Stark law and FDA enforcement actions. We also counsel and help resolve licensing complaints, payer audits and appeals, DEA investigations and contractual disputes, and we regularly defend personal injury and medical malpractice actions and health care employment disputes.
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