It took a pandemic, but telemedicine finally moved into the mainstream in 2020. Amid COVID-related shelter-in-place and social distancing orders, the Centers for Medicare & Medicaid Services (CMS) eased restrictions for providing telehealth services, and patients and doctors who had never used telemedicine before tried it out of necessity – and discovered benefits like convenience and efficiency. But the meteoric rise in telehealth services has triggered a sizable uptick in telehealth fraud, capturing the attention of the Department of Justice, which announced in September a historic national enforcement action alleging that 86 providers submitted $4.5 billion in fraudulent telehealth-related claims. The DOJ has indicated that telehealth will continue to be a focus of its anti-fraud activities, shining a spotlight on the need for providers to set up and maintain legally compliant telehealth practices.
Growth of telehealth in 2020
Telemedicine, which refers to the use of telecommunications technology to provide health care services remotely, had been slowly inching up in popularity prior to the pandemic, but had not achieved wide-spread adoption. Only 0.1 percent of Medicare patient visits were via telehealth in February 2020; by April, the percentage had soared to 43 percent. CMS has temporarily added 144 reimbursable telehealth services, and the agency has indicated some changes may become permanent.
A May reported 42 percent of adults had used telehealth services since the beginning of the pandemic, and 51 percent said they would continue doing so afterward because of the convenience. Physician adoption nearly doubled from the prior year, with 38 percent of physicians reporting “telemedicine” as a skill, according to a survey by online health care networking group Doximity, which projects that more than 20 percent of all medical visits in 2020 will be conducted via telehealth tools.
Growth in fraud
In September, the Department of Justice teamed with other government agencies to announce the largest health care fraud and opioid enforcement action in its history, charging 345 defendants with allegedly submitting more than $6 billion in false and fraudulent claims to federal health care programs and private insurers. About 75 percent of the fraudulent claims – $4.5 billion – involved telemedicine.
In many of the cases, telehealth executives allegedly paid doctors and nurse practitioners to order unnecessary medical equipment, genetic and diagnostic testing, and medications, either with no patient interaction or after only a brief phone call with a patient that they had never seen before. Kickbacks were allegedly given to the telehealth executives after the equipment companies, laboratories and pharmacies billed Medicare or Medicaid for items and services that the government says were often not provided to or were worthless to patients.
“Telemedicine can foster efficient, high-quality care when practiced appropriately and lawfully,” Department of Health and Human Services Deputy Inspector General Gary Cantrell said in a statement. “Unfortunately, bad actors attempt to abuse telemedicine services and leverage aggressive marketing techniques to mislead beneficiaries about their health care needs and bill the government for illegitimate services.”
The need for proper compliance
The government’s enforcement actions, which reflect its growing focus on the telehealth space, are a reminder to health care providers that, as they launch or expand their telehealth offerings, they must take painstaking care to set up legally compliant systems. In addition to ensuring that their technology is safe and secure to protect patient privacy, they must develop and enforce strict protocols to safeguard that the care they provide over telehealth channels is consistent with all federal and state laws.
When health care providers choose to provide telehealth services through third-party administrators, it is imperative that they carefully vet these providers, including carefully reviewing their marketing materials and compensation and billing arrangements, and then question any irregularities that may arise in their dealings. When a telehealth company is charged with fraudulent activity, clinicians may be implicated in the law enforcement action, even if they had no knowledge of the fraudulent practices.
Providers who enter the telehealth fray need to ensure they are in compliance with evolving state laws regarding acceptable modalities for establishing a sufficient patient-provider relationship, which is required for diagnosis, treatment, and the ordering of medical equipment and laboratory testing and for receiving reimbursement from payors. In many of the DOJ’s claims, medical equipment, testing and/or medication were ordered despite a lack of meaningful interaction between the provider and patient.
Billing and coding issues often arise in Medicare fraud cases, and health care providers must take care to use legally correct coding and billing practices with regard to telehealth services.
Finally, to perform telemedicine services, providers generally must be licensed to practice their respective profession in the state in which the patient is located at the time of the visit. Many states loosened the licensure restrictions because of the pandemic, but providers must monitor when these and other temporary COVID-related waivers will be lifted and be prepared to comply with pre-pandemic laws and regulations.
