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12 September 20226 minute read

As the public health emergency continues, OIG and CMS issue documents impacting telehealth providers

Two branches of the US Department of Health and Human Services (HHS), the Office of Inspector General (OIG) and the Centers for Medicare and Medicaid Services (CMS), recently released documents impacting providers that offer medical services via telehealth.

OIG’s Data Brief analyzes telehealth services provided to Medicare beneficiaries during the first year of the pandemic and identifies billing patterns posing a high risk to Medicare. Based on its review, OIG made program integrity recommendations to CMS for enforcement of potential fraud and abuse.  A Fact Sheet separately issued by CMS details its plans to remove many of the flexibilities for telehealth that existed during the pandemic. We describe each of these insightful documents in more detail below.

Overall, as the country moves into a new phase of the pandemic, telehealth providers should prepare to be nimble and stand ready to revise current practices to align with federal regulations and enforcement priorities.  

OIG Data Brief on telehealth services: overall promising results

OIG’s Data Brief discussing Medicare telehealth services during the first year of the pandemic concludes that, overall, results were promising regarding both the uptake in telehealth services and that they can be provided, in the vast majority of cases, in an appropriate manner. However, the Brief called attention to some problem areas with telehealth and OIG’s potential enforcement priorities.

The good news: as predicted, the use of telehealth services dramatically increased during the pandemic, with nearly 40 percent of Medicare beneficiaries using telehealth services in the first year. This was an 88-fold increase over the previous year and directly relates to the measures taken by CMS (described below) to ease regulatory hurdles to expand access to telehealth services.

OIG identified only a small fraction (less than ¼ of a percent) of providers whose billing for telehealth services posed a high risk of fraud and the integrity of the Medicare program. We note that of the problem providers identified, over half were part of the same medical practice. This indicates a higher risk of potential fraud within these practices, as opposed to a problem at large.

In the Brief, OIG identified seven program integrity measures where certain activities may lead to inappropriate billing for telehealth services. They involved billing practices that include:

  1. billing both a telehealth service and a facility fee for most visits
  2. billing telehealth services at the highest, most expensive level every time
  3. billing telehealth services for a high number of days in a year
  4. billing both Medicare fee-for-service and a Medicare Advantage plan for the same service for a high proportion of service
  5. billing a high average number of hours of telehealth services per visit
  6. billing telehealth services for a high number of beneficiaries and
  7. billing for a telehealth service and ordering medical equipment for a high proportion of beneficiaries

OIG recommended that CMS take the following steps: (i) strengthen its monitoring and targeted oversight of telehealth services; (ii) provide additional education to providers on appropriate billing of telehealth services; (iii) improve transparency of “incident to” services when clinical staff primarily delivered a telehealth service; (iv) identify telehealth companies that bill Medicare; and (5) follow up on the providers identified in OIG’s report. CMS agreed to follow up on the providers identified by OIG, but it did not explicitly indicate whether it agreed with OIG on the broader recommendations.

As mentioned in our previous healthcare alert, we expect continued enforcement from both CMS and OIG with regard to combatting fraud in telehealth services, especially in light of this valuable data.

CMS August 2022 Fact Sheet for physicians

In late August, CMS released a Fact Sheet for physicians and other clinicians recounting the flexibilities offered by the agency to fight COVID-19 and identifying planned changes to these policies after the public health emergency (PHE) ends.

As most providers are aware, during the PHE the Secretary of HHS used its waiver authority to create flexibilities within the Medicare program’s regulations for the use of interactive systems to allow for a wide variety of provider types to provide telehealth services to beneficiaries. In part, these flexibilities also allowed for beneficiaries to receive services via telehealth regardless of their location and to provide such services to both new and established patients. The Secretary also used the waiver authority to allow for the use of audio-only equipment for certain telehealth services that would otherwise require video and allowed for remote evaluations, virtual check-ins, and e-visits to be provided to both new and established patients.

CMS identified in the Fact Sheet certain concrete changes that will occur at the end of the PHE. While telehealth providers will need to alter how they provide many services, the following revisions or return to pre-PHE status may have the most immediate impacts on such providers:

Remote patient monitoring: After the PHE, clinicians must have an established relationship with a patient prior to providing remote patient monitoring services.

Direct physician supervision: CMS expects to remove the flexibility allowing for a virtual presence to constitute a physician being “immediately available” for the purposes of meeting direct physician supervision requirements.

Pharmacist orders: When the PHE ends, Medicare will no longer pay for certain lab tests and COVID-19 tests ordered by pharmacists.

Stark Law waivers: The Stark Law blanket waivers regarding remuneration and referrals related to the COVID-19 emergency will terminate and physicians and entities must immediately comply with all provisions of the Stark Law.

When will the public health emergency officially end? Likely not soon

While CMS signals the upcoming removal of certain of the PHE flexibilities, the agency did not address how a number of the PHE flexibilities will be treated after the PHE ends. 

We note that it is our expectation that the PHE will extend beyond its current proposed expiration of October 15, 2022. HHS stated that it would give states and other stakeholders at least 60 days prior notice before making any decision to terminate the PHE or let the PHE expire. To date, there has been no such notification. Thus, and in accordance with past practice, we expect the PHE to continue beyond October 15 for at least another 90 days. Lastly, we note that CMS will remove certain CPT codes from the Medicare Telehealth Services List 151 days after the expiration of the PHE.

We will be keeping a close eye on these and other telehealth initiatives.  For information about telehealth and other ways COVID-19 is changing the healthcare industry, please contact your DLA Piper relationship partner, the authors of this alert, or any member of our healthcare industry group.