Telehealth, the OIG Work Plan, a divided Congress, and Frazzled Coders

Telehealth policies will lapse if something isn’t done quickly, as the PHE is scheduled to end on July 21.

As lawmakers are lining up to decide what Medicare will pay for after the COVID-19 public health emergency (PHE) is over, the U.S. Department of Health and Human Services Office of Inspector General (HHS-OIG) has plans of its own, having announced back in January that Part B telehealth services during the PHE will be under scrutiny.

The telehealth policies the Trump Administration adopted during the COVID-19 lockdowns, which the Biden Administration has continued under the Social Security Act 1135 waivers, will come to an end (lapse) if something isn’t done quickly, as the PHE is scheduled to end on July 21. 

As telehealth was expanded during the pandemic out of necessity, to deliver care to patients who were told to stay home to “help stop the spread,” these office and/or telephone visits had rules applied under the 1135 waiver mandating certain audio and video capabilities. If interactive video was not available, then Medicare opened up phone-call CPT codes as billable options – again, only to be reimbursed during the PHE. However, many practices did not understand or adhere to these rules and reported office visit codes to Medicare when there was no video connection. This will be reviewed by the Centers for Medicare & Medicaid Services (CMS) and HHS under the 2021 OIG Work Plan.

The OIG also recognized that there is a robust conversation happening nationally concerning the need for the continuance and expansion of telehealth services when the pandemic ends. However, due to the relaxed rules under the waiver, the OIG Deputy Director also announced intentions to conduct “significant oversight” of the new telehealth policies and technologies to ensure that the benefits of telehealth are not compromised by fraud, abuse, or misuse.  

The OIG, in fact, is in the process of conducting seven audits involving telehealth services (the OIG’s Work Plan can be found online here). While the OIG’s Work Plan generally focuses on industry trends, audits may involve the identification of overpayments to specific providers. Overall, the OIG Work Plan also points out areas that will be of interest to the various federal, state, and commercial payors as audit targets soon. 

The OIG’s audits cover several specific areas, plus key technical aspects related to the delivery of telehealth. Specifically, the OIG’s “Audits of Medicare Part B Telehealth Services During the COVID-19 Public Health Emergency” reflect a key aspect of the focus:
 

    1. The first phase of the OIG Part B audits will review whether the billing of evaluation and management (E&M), opioid use disorder, end-stage renal disease, and psychotherapy by telehealth met Medicare requirements. 
    2. In phase two of the OIG’s Medicare Part B audits, the OIG will examine distant and originating site locations, virtual check-in services, electronic visits, remote patient monitoring, use of telehealth technology, and annual wellness visits. In other words, the use of telehealth to deliver certain services and the technical requirements for delivering telehealth will be under scrutiny. 

Another specific target area for the OIG is home health telehealth services. As noted by the OIG, the final regulations allowing home health agencies to use telehealth services in conjunction with in-person visits specified that “the plan of care must include any provision of remote patient monitoring or other services furnished via telecommunications technology or audio-only technology, and that such services must be tied to patient-specific needs, as identified in the comprehensive assessment.” Furthermore, the regulations stated that telehealth services cannot substitute for a home visit.

According to CMS, telehealth visits saw a 79-percent surge during the pandemic, due to PHE 1135 waiver flexibility of the telehealth rules and regulations. But with these waivers, federal officials also saw fraud and abuse.

HHS-OIG determined that this abuse warranted further review and audits, as specialty associations, such as the American Hospital Association (AHA) and other proponents of telehealth, are urging Congress to keep these flexibilities in place after the PHE ends. The January 2021 OIG Work Plan will review Part B services to be sure that the benefit of telehealth outweighs the lack of safeguards under the 1135 waiver, and to look at outcomes, provider adherence to PHE rules, and the continued potential for fraud, before decisions of permanency are made. 

Also, the Medicare advisory committee, MedPAC, has recommended a cautious approach that would temporarily cover some telehealth services for all beneficiaries, but revert to lower reimbursement rates post-crisis for virtual appointments, compared to in-person. There’s also concern that a rapid expansion could prompt more fraudulent billings; the OIG estimates that $4.5 billion of telehealth-related fraud arose last year, which is why Part B E&M services provided during the PHE are on the current Work Plan. 

If you look not only at telehealth, but telemedicine, the OIG just posted details about a durable medical equipment (DME) company that a jury recently convicted for a scheme wherein “the defendants paid a fixed rate per DME item in exchange for prescriptions and paperwork completed by telemedicine doctors that were used to submit false claims to Medicare.” Through this scheme, which to me sounds like more of a telemarketing scheme than telehealth, the defendants billed Medicare parts B and C approximately $59 million and were paid about $27 million. These defendants allegedly wired millions of dollars in proceeds into their personal bank accounts, both in the U.S. and overseas.

The overseas mention is just another facet of potential telehealth fraud and abuse, with call centers located in other countries using social engineering to obtain necessary information to submit false claims. Unfortunately, the Medicare population is the most vulnerable, and preyed upon relentlessly. This is why proponents of telehealth need to take a step back and allow the OIG and the related oversight agencies to do their job and determine if the good outweighs the bad when it comes to this type of delivery of medicine.

Programming Note:  Listen to Talk Ten Tuesdays today for more details on how all of this could play out, and what to be proactive about in your practices – as telehealth audits for compliance under the Medicare program have begun. 

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Terry A. Fletcher BS, CPC, CCC, CEMC, CCS, CCS-P, CMC, CMSCS, ACS-CA, SCP-CA, QMGC, QMCRC, QMPM

Terry Fletcher, BS, CPC, CCC, CEMC, CCS, CCS-P, CMC, CMSCS, CMCS, ACS-CA, SCP-CA, QMGC, QMCRC, is a healthcare coding consultant, educator, and auditor with more than 30 years of experience. Terry is a past member of the national advisory board for AAPC, past chair of the AAPCCA, and an AAPC national and regional conference educator. Terry is the author of several coding and reimbursement publications, as well as a practice auditor for multiple specialty practices around the country. Her coding and reimbursement specialties include cardiology, peripheral cardiology, gastroenterology, E&M auditing, orthopedics, general surgery, neurology, interventional radiology, and telehealth/telemedicine. Terry is a member of the ICD10monitor editorial board and a popular panelist on Talk Ten Tuesdays.

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