TELEMEDICINE IN THE TIME OF COVID-19

In 1997, Medicare began reimbursement for telemedicine services through the passage of the Balance Budget Act.  For decades, telemedicine was primarily relied upon by rural community health care providers to reach patients in underserved communities and those without reasonable access to medical specialists.  It was not until Covid-19 pandemic when telemedicine experienced an unprecedented expansion in utilization and government regulations.  However, even now, it is not clear whether this expansion is sustainable over the long term.

Telemedicine is remote delivery of health care services and can be categorized under three common types:

·         Interactive Medicine (a/k/a live telemedicine): Audio-video communication tools which allow patients and physicians to communicate in real-time while complying with HIPAA privacy and security requirements.

·         Store and Forward: Technologies that collect images and data to be transmitted and interpreted at a later time.

·         Remote Patient Monitoring: RPM tools communicate biometric data, such as blood pressure, using mobile medical devices to collect and transmit data, allowing for remote monitoring of patients’ health status while they reside at home.

The definition of telemedicine, however, is not so clear-cut.  Different entities (including federal and state governments) define telemedicine or telehealth differently. For instance, different states may have different definitions of telemedicine – some broader in scope than others, and other states may have no definition for the term at all.  

The Institute of Medicine, defines telemedicine as “the use of electronic information and communications technology to provide and support health care when distance separates participants.”  The term telehealth is sometimes used to refer to broader definition of remote health care that does not always involve clinical services.  American Telemedicine Association (ATA) distinguishes “telehealth” and “telemedicine” in the same way one would distinguish health and medicine.

On March 13, 2020, at the height of the Covid-19 pandemic in the US, the federal government issued a telemedicine waiver under Section 1135 of the Social Security Act, to permit expansion of permissible telemedicine services qualified to federal reimbursement.  Some of the important telemedicine regulation expansion implemented by CMS for the duration of the declaration of emergency period, include:

·         Provision of telemedicine in any zip code and within the recipient’s own home;

·         Reimbursement of telemedicine services rendered to all Medicare beneficiaries regardless of the patient’s location (i.e., in any facility or their home);

·         Reimbursement of participating providers for any virtual services rendered to a patient (if services are the same as those performed in a hospital or office);

·         Permission to reduce or waive cost sharing arrangements (e.g., co-payments) without risk of breaching federal fraud and abuse statutes;

·         Where patients do not have the ability to engage their providers by using real-time audio and visual communications, permission to provide services as a “virtual check-in or an e-visit.”  A “virtual check-in” is a brief conversation between a participating Medicare provider and an established patient, lasting 5 to 10 minutes; and

·         Allowing out-of-state participating Medicare providers to treat Medicare patients in a state in which they are not licensed to practice.  Thus far, 49 states have relaxed their licensing rules to allow out-of-state practitioners to provision health care services in their state without a state license.  Each state rules may be different in the scope in which a health care practitioner can provide health care services.

Simultaneously, many state governors also relaxed telemedicine rules during the emergency declaration, but most of these modifications addressed licensing of professionals providing telemedicine, location of the patient and which services where reimbursable by the government. 

It is noteworthy that neither the CMS regulatory expansion nor the state relaxation of telemedicine rules have modified the substantive standards of care related to telemedicine services.  Even the relaxed rules include complex requirements to which telemedicine providers must adhere, especially those receiving payment from CMS. 

Practitioners must also ensure to utilized telemedicine platforms which comply with CMS requirements.  Although Office of Civil Rights has allowed covered providers to use widely available communication modalities for good faith provision of telemedicine services without risk of violating HIPAA, other privacy requirements still apply under CMS and state regulations.

The expansion of the telemedicine rules is set to expire at the end of the state of emergency by the federal government and states and longer-term changes will require legislation.  However, even though some larger health care providers have experienced substantial increase in telemedicine usage (in some cases up to 3,800% between March and April), it is not clear whether this increased usage is sustained after the pandemic.

With such increases in telemedicine usage, there is also concern and opportunities for fraud.  Many factors contribute to fraud in telemedicine, such as a lack of baseline model for the types, charges, and frequency of claims generally involving telehealth.  Other fraud possibilities lie in identity theft, where persons posing as medical providers or malicious telehealth malware steal the identity of unsuspecting patients seeking medical care. Finally, without proper oversight and such broad permissions of the use of telemedicine, medically unnecessary drugs and DME may be dispensed through pharmacies and DME suppliers following telemedicine consultations.

To prevent fraud in telemedicine prior to the Covid-19 pandemic, federal government monitored improper billing by providers by relying on three main areas: The Anti-Kickback Statutes, the Stark Law and the False Claims Act.  Improper billing was generally based on claims for patients not residents of rural areas, patients from non-eligible or non-listed institutional providers, services provided by unacceptable means of communication and illegal or modified prescriptions.

Post Covit-19, the following areas are identified as areas for telemedicine fraud, according to an article entitled “Telemedicine Fraud Ripe During Covid-19 Pandemic”:

·         Office notes that do not substantiate the level of service billed;

·         Billing for non-existent physician visits (“phantom visits”), which occurs when patients do not physically sign into the physicians’ office; and,

·         Referrals for diagnostic studies which are not medically necessary or properly supported by proper documentation.

It is not clear whether the currently expanded telemedicine rules remain in effect after Covid-19 pandemic subsides.  However, it is clear that under the current rules, there are ample opportunities for fraud and practitioners should take care to properly set up and operate their telemedicine practices in compliance with the current regulations.