By DUSTIN WACHLER, ESQ.
Prior to the COVID-19 public health emergency, Medicare coverage of telehealth was restricted to a limited set of services provided via interactive audio and video telecommunications systems between a healthcare provider at a “distant site” and a beneficiary at an “originating site” as defined by Medicare. In order to qualify as an “originating site,” the beneficiary was required to be in a physician office, healthcare facility, or other authorized site located in either a county outside a Metropolitan Statistical Area (MSA) or a rural Health Professional Shortage Area (HPSA) in a rural census tract. In addition to Medicare requirements, telehealth arrangements must also comply with state telemedicine rules, physician licensure laws, and other state laws based on the specifics of a given arrangement (e.g., e-prescribing).
In response to the COVID-19 public health emergency, the Centers for Medicare & Medicaid Services (CMS) significantly expanded access to telehealth services. Specifically, Medicare waived the location requirements to allow beneficiaries to receive care via telemedicine in any location, including at home. Medicare providers may now treat both new and established patients via telemedicine. CMS also drastically increased the types of services that may be provided via telemedicine, including emergency department visits, initial nursing facility and discharge visits, and home visits provided by clinicians eligible to provide telehealth services reimbursed by Medicare. Medicare also added new telehealth services such as virtual check-ins and e-visits.
Medicare’s expansion of telehealth services has been critical to the federal government’s efforts to combat the COVID-19 pandemic. However, given CMS’ widespread and cost-intensive response to the public health emergency, the Department of Health & Human Services (HHS) Office of Inspector General has initiated retrospective reviews to identify fraud, abuse, and waste in the federal healthcare programs. Specifically, the OIG has announced the following additions to the OIG Work Plan: “Audits of Medicare Part B Telehealth Services During the COVID-19 Public Health Emergency” (January 2021); “Audit of Home Health Services Provided as Telehealth During the COVID-19 Public Health Emergency” (February 2021); “Use of Telehealth to Provide Behavioral Health Services in Medicaid Managed Care” (February 2021); “Medicare Telehealth Services During the COVID-19 Pandemic: Program Integrity Risks” (October 2020); “Use of Medicare Telehealth Services During the COVID-19 Pandemic” (October 2020); and “Medicaid—Telehealth Expansion During COVID-19 Emergency” (June 2020). Please note that despite the above announcement dates in 2020 and early 2021, the OIG expects the review process to occur from 2021 through 2022.
While part of the OIG’s review of telehealth services involves internal reviews of CMS policies and procedures, Medicare providers and suppliers engaged in telemedicine services should expect widespread reviews of CMS’ expanded telehealth services. For example, the OIG’s announcement related to audits of Medicare Part B telehealth services indicates that, [b]ecause of telehealth’s changing role, [the OIG] will conduct a series of audits of Medicare Part B telehealth services in two phases,” with phase 1 audits to be focused on “making an early assessment of whether services such as evaluation and management, opioid use order, end-stage renal disease, and psychotherapy meet Medicare requirements,” and phase 2 audits to include, “additional audits of Medicare Part B telehealth services related to distant and originating site locations, virtual check-in services, electronic visits, remote patient monitoring, use of telehealth technology, and annual wellness visits to determine whether Medicare requirements are met.” As an example specific to a certain provider type, the OIG’s announcement of audits of home health providers explains that the OIG “will evaluate home health services provided by agencies during the COVID-19 public health emergency to determine which types of skilled services were furnished via telehealth, and whether those services were administered and billed in accordance with Medicare requirements.” In all cases, the OIG will report as overpayments any services improperly billed to Medicare, as well as make additional recommendations to CMS based on the results of the OIG’s review.
In addition to the multiple reviews of telehealth services billed to the Medicare program, the OIG’s Office of Audit Services plans to review the rapid expansion of telehealth services available under state Medicaid programs in response to the COVID-19 public health emergency. The OIG will review state Medicaid providers compliance with federal and state requirements for telehealth services, as well as whether state Medicaid programs provided sufficient guidance to Medicaid providers.
The OIG’s review of telehealth services provided during the pandemic mirrors similar OIG internal and external audits of other COVID-19 initiatives including, but not limited to, expedited provider enrollment, accelerated payments program, and Provider Relief Fund. Additionally, HHS is expected to review other federal healthcare program expenditures during the COVID-19 pandemic, including payments to providers and suppliers for PPE and other equipment, clinical laboratory tests, and vaccinations. Accordingly, while CMS’ aggressive response to the pandemic has aided the healthcare industry, Medicare providers and suppliers (and any other individuals and entities) who benefited from COVID-19 initiatives should be prepared for various forms of retrospective reviews by the federal government.