A Telehealth Tune-up under the PHE: Can You Survive an OIG Audit?

There has been a surge in telehealth fraud and abuse of more than $1 billion.

When the Public Health Emergency (PHE) was extended for the eighth time on Jan. 14, continuing the PHE through April 18, so were the Coronavirus Aid, Relief, and Economic Security (CARES) Act flexibilities, under the 1135 waiver. This allows for virtual patient encounters to continue to be covered under Medicare when the patient is in their home when services are rendered.

However, the U.S. Department of Health and Human Services (HHS) and its Office of Inspector General (OIG) have seen a surge in telehealth fraud and abuse, to the tune of over $1 billion. This is why the Part B telehealth services landed on the OIG Work Plan in 2021, and the audits have expanded from seven target areas to nine. It is time to take inventory of how your practices are handing telehealth coding, billing, and reporting during the PHE. My rule of thumb is, “if the OIG is looking into it, you should be looking into it as well.”

Let’s look at the top 10 telehealth billing rules for FFS (fee for service) under the COVID-19 CARES Act, as listed on the CMS FAQ Sheet. A reminder that these are temporary, as long as the PHE is in effect:

1. To bill an office visit code, 99202-99215, there must be both an audio and video connection with the patient (interactive two-way video);
2. If there is no video connection during the patient encounter, the visit becomes a telephone call (code 99441-99443);
3. The platform used must be listed/documented in the patient medical record, and if it is not a HIPAA-secured electronic medical record (EMR), but rather a smart-phone video chat app such as FaceTime or Skype, the patient needs to be informed that the link may not be secure;
4. Consents need to be obtained once per year, and documented;
5. If the video portion of the visit cuts out during the visit, make sure time is documented, because the visit now becomes a phone call code;
6. Do not solicit patients for telehealth services;
7. You can use either “time” or “MDM (medical decision-making)” to level your code;
8. Physicians (MDs/DOs) and non-physician practitioners (NPPs, such as NPs, PAs and CNs) can report telehealth Services;
9. Certain therapists can report their specific services under telehealth. Check the telehealth services list with CMS on which codes are approved; and
10. A statement to confirm that the telehealth visit is to “slow or to stop the spread of COVID-19” should be reflected in the patient medical record to reflect “good faith,” and not only convenience.

Many practices did not adhere to the above rules and billed audio-only services incorrectly as office visits, and now may be under close scrutiny by the HHS and the OIG. The OIG has listed audio-only telehealth services on their 2021 Work Plan, so medical practices need to self-audit their telehealth services to make sure they can withstand a formal audit, if ever questioned.

Now, to update for 2022, behavioral health and mental health services will be permanently added to the telehealth services list once the PHE ends. A new audio-only phone call HCPCS code was added, G2252, to reflect an audio-only visit of 11-20 minutes when an in-person or virtual visit without video capabilities is not available to the provider or the patient. The audio-only phone call codes are slated to return to non-covered status when the PHE ends, and this was Medicare’s way of having an option for audio-only telehealth above and beyond the virtual check-in codes, G2012 and G2010.

Remember that the audio-only codes continue to have frequency and diagnosis rules to qualify for use.

HCPCS code G2252 is to be utilized for patients who do not have access to audio and video technology, and for “medical discussion…when the acuity of the patient’s problem is not necessarily likely to warrant a visit, but when the needs of the particular patient require more assessment time (11-20-minute discussion)” from the practitioner, differentiating it from G2012. Furthermore, these codes are used for established patients who have a relationship with the physician, and if the patient is scheduled for the soonest available appointment or comes to the clinic for an appointment within 24 hours, or was seen in the past seven days, this is not reported. Again, this is not valid until after the PHE ends.

The expansion of telehealth and the relaxation of the rules during PHE were considerable, but for the majority of it, it continues to be temporary. CMS does not have the authority to continue with the originating site being the patient’s home once the PHE ends, so Congress would have to step in and make that change. There are several bills addressing the permanent expansion of telehealth, and ICD10monitor will keep you updated as we receive regulatory updates.

Programming Note: For more information on this topic, listen to the live edition of  Talk Ten Tuesdays, when Terry Fletcher will discuss compliance issues surrounding telehealth and how to be proactive to make sure you can withstand an audit.