Since COVID-19, telehealth/telemedicine has experienced significant growth, largely due to its expansions and waivers. Specifically, CMS temporarily waived some requirements that providers typically must follow to bill for telehealth services (e.g., the requirement that the patient be present at a physician’s office or other authorized facility) to ensure that patients can receive medical treatment without having to risk physically going to a doctor’s office during the pandemic.
Despite the government’s telehealth expansion and waivers, telehealth continues to be fraught with fraud and abuse. For example, in the 2021 National Healthcare Fraud Enforcement Action, telehealth fraud cases amounted to over $1.1 billion in allegedly false and fraudulent claims by dozens of defendants across 11 judicial districts. However, there remain benefits to telehealth. One aspect of telehealth’s expansion closely monitored (and anxiously awaited) by patients and the healthcare industry is guidance regarding the duration of the telehealth expansions and waivers, as many were intended to be temporary. However, recent government actions may indicate that telehealth expansion may be around a while longer – at least in some form.
The U.S. Department of Health and Human Services (“HHS”) Office of Inspector General (“OIG”) updated its “Work Plan” to include evaluation of telehealth services in select federal health care programs, including Medicare, for use, risks, and future needs. The OIG’s Work Plan is adjusted based on various factors, such as priorities, needs, resources, legislation, and to avoid duplicative efforts. Although the OIG provides only a synopsis of planned and current Work Plan projects, the OIG does provide reports for completed projects. Regarding telehealth, the Work Plan notes that “HHS-OIG will work with the other OIG members in and leadership of the Pandemic Response Accountability Committee (PRAC) to produce a report describing the types of telehealth services that are available, including those that were expanded during the pandemic, and key program integrity risks associated with the use of telehealth across six selected Federal health care programs.”
Besides the Work Plan update, there have been several bills introduced that affect telehealth. For example, Representative Dean Phillips introduced the Telehealth Coverage and Payment Parity Act (H.R. 4480) in July 2021, which would affect coverage and coverage rates of telehealth services by private health insurance plans. Representative Llyod Doggett introduced H.R. 6202, which amends titles XI and XVII of the Social Security Act to, in part, extend and expand access to telehealth services. H.R. 6202 was introduced on December 9, 2021.
Physicians and other healthcare providers who avail themselves of the opportunities that telehealth and telemedicine provide must remain vigilant with compliance and potential fraud and abuse concerns. While several bills have been introduced, these are not laws. Providers and suppliers should be cautious when considering any bill or proposed rule not signed into law or established/recognized, as such bills and proposals often undergo several revisions before becoming codified or recognized, if ever.
The attorneys at Chilivis Grubman represent healthcare clients of all types and sizes in connection with government investigations (both criminal and civil) and regulatory matters, including matters involving the DOJ and HHS-OIG. If you need assistance with such a matter, please contact us today.