Telemedicine: Three fraud and abuse triggers

The practice of telemedicine is rapidly growing as more health professionals discover the value in treating patients via technology. Lisa S. Mazur, a Chicago-based health law attorney specializing in telemedicine, shares guidance on how to avoid running afoul of fraud and abuse regulations when using telehealth.

1. Improper coding. Incorrect billing for telemedicine services is a top trigger for federal fraud and abuse scrutiny. A 2018 Office of Inspector General (OIG) report found that 31% of a sample of 100 telehealth claims did not meet Medicare conditions for payment. Primary reasons for inaccurate billing included ineligible institutional providers; services provided by unacceptable means of communication; claims for noncovered services; and claims for patients who received services at nonrural originating sites. The inspector general estimated that Centers for Medicare & Medicaid Services wasted $3.7 million in improper telehealth payments during the audit period (2014 and 2015) and recommended that CMS conduct more audits going forward to identify telehealth overpayments.

“The error rate is shocking,” Ms. Mazur said in an interview. “The problem is the providers know what they need to do for traditional in-person services, but they don’t fully understand the complexities and nuances that can be implicated by telemedicine. [For instance], they know how to bill for an in-person E/M [evaluation and management] service, but they don’t know to bill for it properly for when it’s done virtually.”

To ensure correct billing, it’s critical for providers and billing staff to review CMS’ resources on requirements for telehealth payments and make sure they’re up to date with any changes.

2. Kickback skepticism in arrangements. Some telemedicine arrangements can raise kickback concerns if not properly defined. The federal Anti-Kickback Statute prohibits the exchange of anything of value in an effort to induce the referral of business in federal health care programs. For example, if a large hospital system purchases or leases telemedicine equipment at a discounted rate to a rural practice, the hospital could be accused of providing equipment at less than fair market value to secure referrals, Ms. Mazur explained.

Such arrangements should not raise alarm as long as certain conditions are met, according to a 2018 OIG advisory opinion. The opinion stemmed from an inquiry from a nonprofit, federally qualified health center that planned to provide free telemedicine equipment to a county clinic providing HIV testing and treatment. In his opinion, Robert K. DeConti, OIG assistant inspector general for legal affairs, wrote that the arrangement in question was low risk because it included safeguards to prevent inappropriate patient steering, it did not inappropriately increase costs to federal health programs, and it improved access to care.

Essentially, if health professionals can show that their telemedicine arrangement legitimately benefits patient care and improves patient outcomes, they are not likely to draw scrutiny, Ms. Mazur said. Because fraud and abuse laws can be complicated, she recommended having an attorney review telemedicine arrangements before they launch to spot any potential risks. Ensure the purpose of the arrangement can be clearly outlined should questions arise.

 

3. Free patient technology. The Civil Monetary Penalties Law is another fraud and abuse statute that can come into play in the telemedicine setting. Under this law, health professionals cannot knowingly solicit or receive remuneration for a patient referral nor can they induce patients to visit them via incentives such as free products. In the telemedicine context, the law can be triggered when practices offer patients free remote monitoring devices or apps that help track medical data.

“Hospitals and groups have very legitimate reasons to want to provide their patients with these types of tools for free,” Ms. Mazur said. “But anytime a health professional who is billing Medicare for services provides some to a patient for free, there’s a concern that you’re giving that service or product because you’re trying to induce them to come to you for care.”

The right parameters around free telemedicine tools can make all the difference, she said. For example, it’s important that practices do not market the free or discounted product to patients, according to Ms. Mazur. Also, make clear that the free products do not increase profits for the practice and that the offerings do not raise federal health care billings. Another way to go about it is to include the practice of providing a free telemedicine product or device under the scope of their charity policy by including language outlining when free or discounted products or services can be provided to underinsured patients, Ms. Mazur said.

Another good idea is for practices to integrate telemedicine into their corporate compliance programs. All health care entities are encouraged to have a corporate compliance program that outlines policies, training protocols, and standards of conduct to prevent, identify, and mitigate fraud and abuse.

Practices “need to make sure their existing compliance programs, including policies and procedures, take into account the nuances that are implicated by telemedicine,” Ms. Mazur said.

The practice of telemedicine is rapidly growing as more health professionals discover the value in treating patients via technology. Lisa S. Mazur, a Chicago-based health law attorney specializing in telemedicine, shares guidance on how to avoid running afoul of fraud and abuse regulations when using telehealth.

1. Improper coding. Incorrect billing for telemedicine services is a top trigger for federal fraud and abuse scrutiny. A 2018 Office of Inspector General (OIG) report found that 31% of a sample of 100 telehealth claims did not meet Medicare conditions for payment. Primary reasons for inaccurate billing included ineligible institutional providers; services provided by unacceptable means of communication; claims for noncovered services; and claims for patients who received services at nonrural originating sites. The inspector general estimated that Centers for Medicare & Medicaid Services wasted $3.7 million in improper telehealth payments during the audit period (2014 and 2015) and recommended that CMS conduct more audits going forward to identify telehealth overpayments.

“The error rate is shocking,” Ms. Mazur said in an interview. “The problem is the providers know what they need to do for traditional in-person services, but they don’t fully understand the complexities and nuances that can be implicated by telemedicine. [For instance], they know how to bill for an in-person E/M [evaluation and management] service, but they don’t know to bill for it properly for when it’s done virtually.”

To ensure correct billing, it’s critical for providers and billing staff to review CMS’ resources on requirements for telehealth payments and make sure they’re up to date with any changes.

2. Kickback skepticism in arrangements. Some telemedicine arrangements can raise kickback concerns if not properly defined. The federal Anti-Kickback Statute prohibits the exchange of anything of value in an effort to induce the referral of business in federal health care programs. For example, if a large hospital system purchases or leases telemedicine equipment at a discounted rate to a rural practice, the hospital could be accused of providing equipment at less than fair market value to secure referrals, Ms. Mazur explained.

Such arrangements should not raise alarm as long as certain conditions are met, according to a 2018 OIG advisory opinion. The opinion stemmed from an inquiry from a nonprofit, federally qualified health center that planned to provide free telemedicine equipment to a county clinic providing HIV testing and treatment. In his opinion, Robert K. DeConti, OIG assistant inspector general for legal affairs, wrote that the arrangement in question was low risk because it included safeguards to prevent inappropriate patient steering, it did not inappropriately increase costs to federal health programs, and it improved access to care.

Essentially, if health professionals can show that their telemedicine arrangement legitimately benefits patient care and improves patient outcomes, they are not likely to draw scrutiny, Ms. Mazur said. Because fraud and abuse laws can be complicated, she recommended having an attorney review telemedicine arrangements before they launch to spot any potential risks. Ensure the purpose of the arrangement can be clearly outlined should questions arise.

 

3. Free patient technology. The Civil Monetary Penalties Law is another fraud and abuse statute that can come into play in the telemedicine setting. Under this law, health professionals cannot knowingly solicit or receive remuneration for a patient referral nor can they induce patients to visit them via incentives such as free products. In the telemedicine context, the law can be triggered when practices offer patients free remote monitoring devices or apps that help track medical data.

“Hospitals and groups have very legitimate reasons to want to provide their patients with these types of tools for free,” Ms. Mazur said. “But anytime a health professional who is billing Medicare for services provides some to a patient for free, there’s a concern that you’re giving that service or product because you’re trying to induce them to come to you for care.”

The right parameters around free telemedicine tools can make all the difference, she said. For example, it’s important that practices do not market the free or discounted product to patients, according to Ms. Mazur. Also, make clear that the free products do not increase profits for the practice and that the offerings do not raise federal health care billings. Another way to go about it is to include the practice of providing a free telemedicine product or device under the scope of their charity policy by including language outlining when free or discounted products or services can be provided to underinsured patients, Ms. Mazur said.

Another good idea is for practices to integrate telemedicine into their corporate compliance programs. All health care entities are encouraged to have a corporate compliance program that outlines policies, training protocols, and standards of conduct to prevent, identify, and mitigate fraud and abuse.

Practices “need to make sure their existing compliance programs, including policies and procedures, take into account the nuances that are implicated by telemedicine,” Ms. Mazur said.

The practice of telemedicine is rapidly growing as more health professionals discover the value in treating patients via technology. Lisa S. Mazur, a Chicago-based health law attorney specializing in telemedicine, shares guidance on how to avoid running afoul of fraud and abuse regulations when using telehealth.

1. Improper coding. Incorrect billing for telemedicine services is a top trigger for federal fraud and abuse scrutiny. A 2018 Office of Inspector General (OIG) report found that 31% of a sample of 100 telehealth claims did not meet Medicare conditions for payment. Primary reasons for inaccurate billing included ineligible institutional providers; services provided by unacceptable means of communication; claims for noncovered services; and claims for patients who received services at nonrural originating sites. The inspector general estimated that Centers for Medicare & Medicaid Services wasted $3.7 million in improper telehealth payments during the audit period (2014 and 2015) and recommended that CMS conduct more audits going forward to identify telehealth overpayments.

“The error rate is shocking,” Ms. Mazur said in an interview. “The problem is the providers know what they need to do for traditional in-person services, but they don’t fully understand the complexities and nuances that can be implicated by telemedicine. [For instance], they know how to bill for an in-person E/M [evaluation and management] service, but they don’t know to bill for it properly for when it’s done virtually.”

To ensure correct billing, it’s critical for providers and billing staff to review CMS’ resources on requirements for telehealth payments and make sure they’re up to date with any changes.

2. Kickback skepticism in arrangements. Some telemedicine arrangements can raise kickback concerns if not properly defined. The federal Anti-Kickback Statute prohibits the exchange of anything of value in an effort to induce the referral of business in federal health care programs. For example, if a large hospital system purchases or leases telemedicine equipment at a discounted rate to a rural practice, the hospital could be accused of providing equipment at less than fair market value to secure referrals, Ms. Mazur explained.

Such arrangements should not raise alarm as long as certain conditions are met, according to a 2018 OIG advisory opinion. The opinion stemmed from an inquiry from a nonprofit, federally qualified health center that planned to provide free telemedicine equipment to a county clinic providing HIV testing and treatment. In his opinion, Robert K. DeConti, OIG assistant inspector general for legal affairs, wrote that the arrangement in question was low risk because it included safeguards to prevent inappropriate patient steering, it did not inappropriately increase costs to federal health programs, and it improved access to care.

Essentially, if health professionals can show that their telemedicine arrangement legitimately benefits patient care and improves patient outcomes, they are not likely to draw scrutiny, Ms. Mazur said. Because fraud and abuse laws can be complicated, she recommended having an attorney review telemedicine arrangements before they launch to spot any potential risks. Ensure the purpose of the arrangement can be clearly outlined should questions arise.

 

3. Free patient technology. The Civil Monetary Penalties Law is another fraud and abuse statute that can come into play in the telemedicine setting. Under this law, health professionals cannot knowingly solicit or receive remuneration for a patient referral nor can they induce patients to visit them via incentives such as free products. In the telemedicine context, the law can be triggered when practices offer patients free remote monitoring devices or apps that help track medical data.

“Hospitals and groups have very legitimate reasons to want to provide their patients with these types of tools for free,” Ms. Mazur said. “But anytime a health professional who is billing Medicare for services provides some to a patient for free, there’s a concern that you’re giving that service or product because you’re trying to induce them to come to you for care.”

The right parameters around free telemedicine tools can make all the difference, she said. For example, it’s important that practices do not market the free or discounted product to patients, according to Ms. Mazur. Also, make clear that the free products do not increase profits for the practice and that the offerings do not raise federal health care billings. Another way to go about it is to include the practice of providing a free telemedicine product or device under the scope of their charity policy by including language outlining when free or discounted products or services can be provided to underinsured patients, Ms. Mazur said.

Another good idea is for practices to integrate telemedicine into their corporate compliance programs. All health care entities are encouraged to have a corporate compliance program that outlines policies, training protocols, and standards of conduct to prevent, identify, and mitigate fraud and abuse.

Practices “need to make sure their existing compliance programs, including policies and procedures, take into account the nuances that are implicated by telemedicine,” Ms. Mazur said.