The COVID-19 pandemic has dramatically altered the way health care providers render services, including the proliferation of telehealth options available. Most have viewed telehealth expansion positively with its ability to increase access to services while reducing burdens for both patients and providers. Dramatic growth in a health care service, however, also brings with it the opportunity for bad actors, especially in light of the inherent challenges associated with regulating a virtual service platform.

The Office of Inspector General (OIG) at the Department of Health & Human Services (HHS) recently issued a statement recognizing the promise that telehealth and other digital health technologies have for improving care coordination and health outcomes. However, the OIG’s statement also highlighted that telehealth is ripe for fraud, abuse, or misuse. The OIG is in the process of conducting significant oversight work to assess telehealth services during the public health emergency, with the first work products expected to be published later this year.

The OIG’s Active Work Plan Items currently include seven audits involving telehealth services, including when provided as Medicare Part B services and home health services. With respect to Medicare Part B telehealth services, the OIG is in the process of auditing whether providers have met the Medicare requirements associated with distant and originating site locations, virtual check-in services, electronic visits, remote patient monitoring, use of telehealth technology, and annual wellness visits. With respect to home health services, CMS amended its regulations in response to the pandemic to allow home health agencies to use telecommunications systems in conjunction with in-person visits provided that certain requirements are met. For example, the home health plan of care must include any provision of remote patient monitoring or other services furnished via telecommunications technology or audio-only technology and such services must be tied to patient-specific needs as identified in the comprehensive assessment. The CMS regulations further provide that telehealth services cannot substitute for a home visit ordered as part of the plan of care and cannot be considered a home visit for the purposes of patient eligibility or payment. Given the specificity of these requirements, the OIG is in the process of evaluating home health services provided by agencies during the COVID-19 public health emergency to determine whether those services were administered and billed in accordance with Medicare requirements. The OIG will report as overpayments any services that were improperly billed.

Health care providers utilizing telehealth would be well served to take the time now to evaluate whether their services and billing practices are meeting Medicare and Medicaid requirements and to make any necessary retrospective and prospective corrections. Such efforts could help to greatly reduce the risk of being the recipient of an overpayment demand or the subject of a False Claims Act investigation.

To sign up for Dykema’s Health Care Blog email updates, please click here