Legal Summary

was stolen or compromised. Consult a knowledgeable health care attorney before entering into any arrangement involving patients with whom you are not establishing a treatment relationship.

Risk Number Six. Providers who bill multiple plans or programs for the same telehealth services were considered a high risk for fraud and abuse. Billing Medicare fee-for-service and a Medicare Advantage plan for the same service on the same day was the example given. This is never appropriate.

Risk Number Seven. Billing for a telehealth service and then ordering medical equipment for a high percentage of patients indicates risk as well. The OIG threshold for this analysis was ordering equipment for 50 percent of patients seen via telehealth. The median is 3 percent. The OIG has prosecuted multiple physicians for fraud for arrangements in which the physician is hired to do telehealth visits for the purpose of assessing patients’ eligibility for items and services like durable medical equipment and genetic testing, often as part of a kickback scheme.

Risk Number Eight. Billing for both a telehealth service and a facility fee for most visits was the final risk factor that the OIG identified. For the Medicare program, this is never allowed. State Medicaid programs and private payer policies may vary, but as a general rule, do not bill for both a telehealth visit and facility fee.

In addition to the risks enumerated above, the OIG also advised payers to analyze billing trends of group practices as well as identifying providers who “appear to be associated with telehealth companies” that contract with physicians to provide on-demand telehealth services to patients (a/k/a direct-to-consumer telehealth vendors). If providers who pose program integrity risk are associated with such companies, the OIG reasoned, the telehealth companies may need to be monitored more closely. The OIG conceded, however, that there is currently no systematic way to identify such associations as claims are billed with the provider’s individual number.

Audits, pre- and post-payment reviews, and repayment demands can interfere significantly with a practice’s cash flow. The toolkit’s identification of high-risk billing and practice patterns allows providers to either modify their behavior to avoid audits and other actions or to implement protective measures to allow a robust response to such actions. Physicians can start with a self-audit to identify risk factors if ongoing monitoring is not already in place. In addition, physicians should pay attention to any Comparative Billing Reports (“CBRs”) they may receive from CMS. These reports reflect a physician’s specific billing and/ or prescribing patterns as compared to peers on both a state and national level and are intended to educate physicians on Medicare billing rules and payment policy. CMS develops CBR study topics based on the level of risk for improper payments or over-utilization. In 2021, a CBR on the impact of the PHE on telehealth was issued. Subjects can be, and have been, repeated, so physicians who routinely bill for telemedicine services should remain alert for another CBR on telehealth. To ensure that you receive any such reports, make sure that your email address in PECOS is updated.

DISCLAIMER: This article is for information purposes only and does not constitute legal advice. You should contact your attorney to obtain advice with respect to your specific issue or problem.

Ms. Jackson is a shareholder in the Health Care Practice Group of Brown & Fortunato, P.C., which is headquartered in Amarillo, Texas, and serves healthcare providers nationally. She is licensed in both Pennsylvania and Texas and maintains an office in the greater Pittsburgh area. She may be reached locally at (724) 413-5414 or bjackson@bf-law.com. Her firm’s website is www.bf-law.com.