Telemedicine practice remains subject to close scrutiny and heavy-handed oversight by federal authorities. Practitioners, telemedicine companies, durable medical equipment (DME) suppliers, and other providers must adhere to comprehensive compliance programs in order to avoid the risk of civil or criminal prosecution.
Telemedicine is no longer a novel concept. Every day, thousands of patients across the country receive diagnoses and treatment plans over the phone and online, and an entire industry has emerged out of the practice of telemedicine. Telemedicine companies connect doctors with patients, and durable medical equipment (DME) suppliers, testing labs, and other companies provide products and services to patients who never have to leave the comfort of their home.
Yet, despite its benefits, telemedicine remains somewhat of an outlier under the federal health care regime. Although there are now numerous billing codes dedicated to telemedicine services, telemedicine practitioners often find themselves the subject of enhanced scrutiny by federal authorities. The same holds true for telemedicine companies, DME companies, labs, and other providers involved in telemedicine as well. The Centers for Medicare and Medicaid Services (CMS), the U.S. Department of Health and Human Services’ Office of Inspector General (OIG), and other federal authorities view telemedicine as having a high-risk for fraud and abuse, and this means that legitimate providers must be very careful to avoid any mistakes that could lead to recoupments or other penalties.
With this in mind, practitioners and business involved in telemedicine must give due consideration to their compliance obligations. While engaging in telemedicine practice can be risky for providers who are not aware of (or who do not adequately address) the legal risks involved, implementing a comprehensive compliance program can allow for the safe practice of telemedicine.
Federal Health Care Compliance Lawyers Experienced in Telemedicine
About Our Federal Health Care Compliance Practice
Our attorneys have extensive experience representing physicians, telemedicine companies, DME suppliers, laboratories, and other health care professionals and entities with regard to all aspects of federal health care compliance. This includes compliance with the Medicare, Medicaid, Tricare, and Department of Labor (DOL) benefit program requirements, as well as the Anti-Kickback Statute, the False Claims Act, and all of the various other statutes that apply to program-participating providers. From developing custom-tailored compliance programs focused on the unique legal aspects of telemedicine to implementing these programs and utilizing them to defend against federal health care fraud audits and investigations, we guide our clients through the entire compliance process while ensuring that they feel confident and informed every step of the way.
Why Choose Oberheiden, P.C. for Telemedicine Compliance?
With the potentially-severe consequences of noncompliance, your choice of compliance counsel matters greatly. Health care providers across the country trust our attorneys for their:
- Government Backgrounds – Prior to entering private practice, many of our attorneys served as federal health care fraud prosecutors with the U.S. Department of Justice (DOJ).
- Health Care Focus – Our firm’s practice is devoted 100% to federal matters, with a particular focus on federal health care compliance and defense.
- Health Care Experience – As a result of our attorneys’ backgrounds and practice focus, we offer centuries of relevant experience and the insights gained from serving as counsel in well over a thousand federal health care fraud audits, investigations, and prosecutions.
- Client-Focused Advice – Just as no two health care practices are the same, federal health care compliance cannot be addressed with a cookie-cutter approach. We work closely with our clients to offer custom-tailored compliance solutions.
- Full-Service Representation – Our attorneys make themselves readily accessible to clients, and we offer highly-skilled and experienced legal representation for all federal health care matters.
Top 5 Compliance Concerns for Telemedicine Providers and Other Entities
1. Billing and Coding for Telemedicine Services, Medications, DME, and Supplies
There are now numerous special HCPCS/CPT codes that apply specifically to the practice of telemedicine. When billing Medicare or another government health care benefit program, it is essential to use the correct billing codes, as billing and coding errors are among the most-common issues leading to recoupments and fines in federal health care fraud investigations. A telemedicine compliance program should focus heavily on ensuring that billing administrators are aware of and know how to choose the correct billing codes when filing claims for program reimbursement.
2. Compensation Arrangements Between Physicians, Telemedicine Companies, and Other Entities
Another common issue in telemedicine fraud investigations is the utilization of agreements that violate the Anti-Kickback Statute’s prohibitions against the payment of referral fees and other forms of “remuneration.” Financial arrangements between physicians, telemedicine companies, DME suppliers, laboratories, and marketing groups are all routinely scrutinized during federal investigations, and percentage-based compensation arrangements will almost always trigger additional inquiries focused on Anti-Kickback Statute compliance.
3. Patient Location and Method of Delivery
When providing telemedicine services, physicians must be extremely careful to ensure that they comply with the applicable geographic limitations. Medicare and the other federal health care benefit programs also limit reimbursements to certain methods of delivery (i.e. videoconferencing versus email communication), and billing for services that are not eligible for reimbursement can be prosecuted as a form of fraud under the False Claims Act.
4. “Red Flags” in Telemedicine for Federal Health Care Fraud Enforcement
In addition to using non-telemedicine-specific billing codes and entering into percentage-based compensation arrangements, federal authorities view a variety of other practices as potential “red flags” for telemedicine fraud as well. When developing a compliance program, it is important to specifically address these red flags even if they may not currently be directly relevant to your business or practice.
5. Lack of Adequate Documentation
When engaging in telemedicine, not only do you need to be compliant, but you need to be able to prove that you are compliant as well. This means drafting and maintaining many different forms of documentation. From compliance policies themselves to third-party agreements and evidence of medical necessity, the more documentation you have, the less likely you are to face unexpected and undesirable consequences due to a federal investigation.
Key Considerations for Developing and Implementing a Comprehensive Telemedicine Compliance Program
With these concerns in mind, when developing a telemedicine compliance program, there are a number of key considerations that need to be addressed. These include:
- Policies, Procedures, and Protocols – Developing written policies, procedures, and protocols not only ensures that your personnel have access to the information that they need, but it also provides a foundation for executing a successful defense in the event of an audit or investigation. Investing the time to develop customized and telemedicine-focused compliance documents is the first step toward mitigating the risk of prosecution for billing errors and other mistakes.
- Third–Party Relationships – Relationships with third parties must be appropriately structured and documented to avoid Anti-Kickback Statute implications. This includes relationships between physicians and telemedicine companies, between DME suppliers and marketers, and those involving all other parties engaged in the delivery of telemedicine services.
- Systematic Compliance – With your policies, procedures, and protocols adequately documented, it is time to put them into practice. This should be done systematically, and it should involve consistent and concerted efforts to ensure compliance through all levels of your business or practice.
- Training and Education – Part of implementing a telemedicine compliance program involves providing training and education to all relevant personnel. Training and education programs should be tailored to individual employees’ roles with regard to patient services and billing compliance, and they should be thoroughly documented as well.
- Auditing and Monitoring – Compliance protocols should include ongoing auditing and monitoring of billing practices, third-party contracts, and other relevant aspects of your business or practice. Responsibility should be assigned to a qualified compliance officer, who should work with legal counsel as necessary to ensure the timely identification and resolution of any potential compliance issues.
- Reporting – Personnel should be encouraged to report any known or suspected compliance issues, and they should be provided the opportunity to report their concerns anonymously. Once an employee reports a potential compliance issue, the compliance officer should investigate promptly to determine whether any remedial efforts are necessary.
- Response – Once an issue has been identified through auditing, monitoring, or reporting, remedial efforts should be commenced immediately. Depending on the circumstances involved, this may involve correcting the issue, taking action to prevent recurrences, and/or reporting the issue to the appropriate federal authorities.
- Audit and Investigation Defense – Compliance documentation should include protocols for responding to an audit or investigation. Telemedicine practitioners and other entities involved in telemedicine can expect to receive these kinds of inquiries, and being prepared to respond can significantly reduce the burdens involved in securing a favorable resolution.
This list is by no means exhaustive; and, in all cases, telemedicine compliance programs must reflect the particular risks facing the medical practice or health care business for which they are prepared. To learn more about telemedicine compliance, please contact us today.
Speak with a Telemedicine Compliance Lawyer at Oberheiden, P.C.
If you have questions about telemedicine compliance and would like to speak with an attorney, we encourage you to contact us for a free initial consultation. To request an appointment, please call 888-519-4897 or inquire online today.