Telehealth Update: Telehealth Waivers Post-PHE and Fraud and Abuse

The current Public Health Emergency expiration deadline is this month.  However, the Secretary of the Health and Human Services indicated he would provide a 60-day notice before ending the PHE in order to minimize disruptions and potential loss of government and private insurance coverage.  That notice has not yet occurred.  Therefore, we expect another 90 extension.  In the meantime, telehealth waivers remain in effect.

Moreover, once the PHE is finally over, the Consolidated Appropriations Act signed into law earlier in 2022 provides a 151 day extension period of the expiration of many of the Covid-related exceptions or waivers, to allow for a transition period.

CMS has provided some guidance as to what waivers and flexibilities might remain in place after the end of the PHE for the purposes of promoting innovation, maintaining or improving quality, advancing health equity, and expanding access to care.

Those relating to telehealth include:

(1) Continued expansion of access to telehealth services for the diagnosis, evaluation, or treatment of mental health disorders;

(2) Temporary continued waiver expanding the types of healthcare professionals who can furnish distant site telehealth services to include all providers who are eligible to bill Medicare for their professional services.  This will allow physical therapists, occupational therapists, speech language pathologists and others to receive payment for Medicare telehealth services.  This waiver will continue for 151 days after the conclusion of the PHE; and

(3) CMS will continue the waiver of the requirement for the use of interactive telecommunications to furnish telehealth services, to the extent they require use of video technology, for certain services.  This waiver allows the use of audio-only equipment to furnish evaluation and management services and behavioral health counseling and educational services for an additional 151 days after the conclusion of the PHE.

Other services included on the Medicare telehealth services list must be furnished using audio and video equipment permitting two-way, real-time interactive communication between patient and provider.

One waiver that CMS has already indicated will not be continued is the waiver currently allowing telehealth services to be furnished to patients of a critical access hospital through an agreement with an off-site hospital.

Another waiver expected to expire at the end of the PHE is that regarding practitioner location. Currently, CMS is waiving the requirement that a practitioner be licensed in the state where they are providing services, so long as the practitioner meets the following four criteria:

(1) be enrolled in the Medicare program;

(2) possess a valid license to practice in the state where they are enrolled;

(3) furnish services in person or via telehealth related to PHE relief efforts; and

(4) is not excluded from Medicare in any state.

However, this waiver does not affect state licensing requirements.  After the end of the PHE, regulations will continue to defer to state law.  As a result, many states have drafted or enacted laws allowing physicians to participate in the Interstate Medical Licensure Compact, so that telehealth may continue across state lines following those licensing guidelines.

With respect to behavioral health, CMS has extended the waiver on the geographic requirements for providing behavioral telehealth services.  However, beginning 151 days after the PHE ends, a provider can only offer tele-behavioral health services anywhere the patient is located so long as the patient had an in-person interaction with the provider in the previous 6 months.

Fraud and Abuse Update

In July of this year, the DOJ announced criminal charges against 36 defendants in 13 federal districts across the US for more than $1.2 billion in allegedly fraudulent telehealth claims involving cardiovascular and cancer genetic testing and DME schemes.  These charges were filed against company executives and owners of clinical labs, DME companies, marketing organizations as well as medical professionals.

At the same time, CMS announced that it took administrative action against 52 providers involved in similar schemes.  The government alleged that medical professionals made referrals for expensive and medically unnecessary cardiovascular and cancer genetic tests, as well as DME.

In these new indictments, the government alleged that marketing organizations used telemarketers to induce elderly Medicare beneficiaries to agree to undergo unnecessary testing, and then telehealth companies arranged for medical professionals to order tests regardless of whether the patient needed them, and with minimum or no patient interaction.  Nor was the testing ultimately used in treatment of the patients.  Claims for reimbursement for the allegedly unnecessary testing were then fraudulently submitted to Medicare.

So how do providers protect themselves from criminal charges, and criminal and civil penalties?  Avoiding liability for fraud and abuse related to telehealth care is not so different from avoiding liability related to in-person treatment.

Providers must determine whether a telehealth visit is appropriate for any given patient.  When a physician has an established relationship with a patient, telehealth confirmation or renewal of orders for equipment such as lab testing, braces or other orthopedic devices might be perfectly appropriate.

If a physical examination is warranted, providers are cautioned not to use telehealth as a short-cut to diagnosis or treatment and instead schedule an in-person exam.

Further, when signing orders presented by a third party, providers must take care to review the patient’s medical record and not simply rely on a third party’s representation that the patient needs a particular type of treatment or device.

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This article was originally published in Healthcare Michigan, October 2022.

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About the Author:

Kimberly Ruppel is Co-Chair of Dickinson Wright PLLC’s Healthcare Litigation Task Force in the firm’s Troy, Michigan office. She has over 20 years’ experience as a commercial litigator who represents healthcare providers, insurers and benefit plans in matters related to healthcare litigation, licensing and regulatory disputes, governmental fraud and abuse investigations, HIPAA compliance, ERISA and insurance claims, coverage and fiduciary disputes, and class actions in state and Federal courts.  She can be reached at 248-433-7291 or and her firm bio can be found here.