The New World of House Calls: Telehealth, COVID19, Fraud, and the Anti-Kickback Statute

On April 30th, the federal government released new changes in covered services in response to the COVID19 pandemic in addition to those previously announced in March. These changes are in effect for the duration of the COVID19 pandemic, which for is indefinite for the time being. Such changes include, generally, the following:

  • Elimination of geographic restrictions. The patient may be at home during the interaction and hospitals may be the originating site for the services. Provider may provide services from home and need not list home address on the claim.
  • Telephone telehealth. Although live video is the standard, phone will be allowed for evaluation and management services, behavioral health counseling, and patient education services.
  • Reimbursement. Payment would increase to match payments for similar office and outpatient visits (fee-for-service rate).
    • Providers may use POS code with a “95” modifier to indicate that the service took place through telehealth.
    • Flexibility to reduce or waive out-of-pocket costs and co-pays.
  • Frequency limitations on subsequent patient visits (in-patient, SNF, critical care consult) have been removed.
  • Face-to-face requirements for nursing home visits/hospice waived in favor of telehealth visits.
  • Prior Existing Relationship requirement for many telehealth visits has been lifted.
  • Expansion of telehealth reimbursable services. Approximately 180 codes are now available.
  • Expansion of who can provide services. Prior to this change, only doctors, nurse practitioners, physician assistants, and certain others could deliver telehealth services. Now, other practitioners are able to provide telehealth services, including physical therapists, occupational therapists, and speech language pathologists.
  • Supervision. Physician supervision may now be done via live video.
  • Licensing requirements (Medicare/Medicaid). The requirement that the physician be licensed in the state where service is provided is waived.
  • Medicare Advantage. These plans have the flexibility to have more expansive telehealth policies related to the types of services covered, although the types of providers are still limited.

The expansion of telehealth to new services and new providers, as well as its relaxation of geographic limitations and established patient relationship requirements will result in a lot more telehealth visits. It will also result in a lot of false and fraudulent claims, both under criminal law and the False Claims Act. We can anticipate seeing the following claims:

  • No service provided. Telehealth claims submitted for beneficiaries for whom there is no patient relationship. This will likely be accomplished through the illegal sale/sharing of “beneficiary” information.
  • Medical necessity. The service provided is not justified by the patient’s medical condition. This could be the result of “beneficiary sharing” or the result of the lack of a prior patient relationship and the failure to establish the propriety of the treatment.
  • Upcoding. A lower paying visit (i.e., check in visit) will be billed as a higher paying telehealth visit (i.e., telehealth visit).
  • Failure to meet time requirements. Where the service has a time requirement (e.g.., therapy), the failure to meet the requirement renders the claim not reimbursable.
  • Failure to meet treatment requirements. Medical judgment criteria apply, but the lack of an in-person visit and prior established relationship may contribute to more of these claims.
  • Billing by an unqualified provider. This will likely be those who now are able to bill for telehealth services but not for the service that they provided.
  • Behavioral services billing. This is an area that is traditionally rife with abuse with at-home visits. With the expansion of telehealth into the virtual home, such abuse is likely to be even greater.
We can anticipate that many wrongly billed claims will be done with the good-faith, but mistaken, belief that the claims are proper. Such is to be expected where many providers are using this option for the first time, and where the conditions of payment for telehealth services vary depending on the payor—e.g., Medicare, Medicare Advantage, and private insurance. A provider must be careful to reimburse such claims immediately upon discovery of improper billing, as failure to do so could result in fines and damages under the False Claims Act. And a provider must also be aware of the potential whistleblowers who may bring the claims to the government’s attention through a qui tam suit.
Although the expansion use of telehealth will result in the expansion of fraud in that area, the elimination of some requirements, at least during the pandemic and perhaps beyond, if the changes become permanent, will reduce or eliminate at least some of the former common bases for fraudulent claims, such as: (1) claims from patients who were listed as coming from rural areas, but came from non-rural areas, and (2) claims from non-eligible or non-listed institutional providers. If the changes do not become permanent, we can anticipate that the transition back to the “regular” telehealth rules will result in the erroneous billing of claims that are no longer reimbursable. Whatever the case, expect to see a rise in complaints in the foreseeable future over telehealth claims.
Maraist, Catherine

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