Telemedicine Compliance

Telemedicine companies can face substantial penalties due to Medicare, Medicaid, Tricare, DOL, and VA non-compliance. Our attorneys and consultants provide comprehensive compliance representation for telemedicine companies and other healthcare providers nationwide.

The role of telemedicine in our modern healthcare system is continuing to grow at a staggering rate. With the transformational role mobile devices have played in our lives over the past 10 years, the expectation of receiving medical advice from the comfort of people’s living rooms became an inevitability. Although telemedicine predates the commercialization of mobile technology, smartphones and tablets have changed the industry entirely. While this means that there are now more opportunities than ever for telemedicine companies and other healthcare providers to provide remote treatment and care recommendations, it also means that the current state of federal telemedicine regulation is well behind the times.

But, this has not stopped federal authorities from aggressively enforcing the regulations that are currently in place. Any time a new trend comes along that substantially impacts the way healthcare providers bill Medicare, Medicaid, Tricare, the U.S. Department of Labor (DOL), and the U.S. Department of Veterans Affairs (VA), federal authorities take notice. We have seen this with the reemergence of compounding pharmacies, the nation’s opioid epidemic, and – even more recently – the evolution and explosion of telemedicine.

Are You Involved in Telemedicine Practice? You Need to Make Compliance a Top Priority

When doctors can consult with patients remotely and trigger a series of program billings by multiple providers for consultation fees, scans, prescriptions, durable medical equipment (DME), and other reimbursable services and supplies, federal authorities are going to closely scrutinize the financial relationships and billing practices of each of the individual entities involved. Federal investigations targeting telemedicine fraud have become commonplace, and the businesses and practices targeted in these investigations often find themselves at risk for substantial penalties.

With this in mind, for telemedicine companies and other entities that provide telemedicine services and fill telemedicine prescriptions for medications and DME, federal compliance needs to be a top priority. While federal compliance programs must always be custom-tailored to the unique aspects of each individual business or practice, some of the general compliance considerations for telemedicine companies and practitioners include:

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Ray Yuen

Former Supervisory Special Agent (FBI)

1. Improper Use of HCPCS/CPT and Other Billing Codes

Many providers do not realize that there are special HCPCS/CPT codes that apply specifically to telemedicine practice. Use of traditional billing codes in connection with telemedicine practice is a common trigger for federal fraud investigations. Even if a provider submits an HCPCS/CPT code that would be correct were it not for the simple fact that the consultation was provided remotely, this mistake still constitutes a form of billing fraud under the federal False Claims Act and the billing regulations for Medicare, Medicaid, Tricare, the DOL, and the VA.

The Centers for Medicare and Medicaid Services (CMS) publish an annual list of telemedicine-specific HCPCS/CPT codes. For 2019, examples of some of the more-commonly-used telemedicine HCPCS/CPT codes include:

• G0425-G0427 (telehealth consultations, emergency department or initial inpatient)
• G0406-G0408 (follow-up inpatient telehealth consultations furnished to beneficiaries in hospitals or skilled nursing facility (SNF))
• 99201-99215 (office or other outpatient visits)
• 96150-96154 (individual and group health and behavior assessment and intervention)
• 90832-90838 (individual psychotherapy)
• G0459 (telehealth pharmacologic management)
• G0270, 97802-97804 (individual and group medical nutrition therapy)
• G0436, G0437, 99406, 99407 (smoking cessation services)
• G0442 (annual alcohol misuse screening, 15 minutes)
• G0444 (annual depression screening, 15 minutes)

2. Improper Method of Delivery or Patient Location

Under varying circumstances, telemedicine services are required to be provided by a specific method of delivery (i.e. videoconferencing, telephone, or email). Telemedicine services must also generally be provided to patients who are currently in a medical setting (as opposed to being unattended in their own homes). Physicians, telemedicine companies, and other providers are all responsible for ensuring that the method of delivery of telemedicine services and the patient’s location at the time of delivery are fully-compliant with the applicable program billing regulations.

3. Unlicensed (Out-of-State) Physician Consultations

Another common issue involves physicians providing telemedicine services to patients who are located in states where the physician is not licensed to practice medicine. Once again, the physician and the telemedicine company share responsibility for ensuring compliance. Telemedicine companies must have adequate controls in place to ensure that they do not refer patients to doctors who are not licensed to treat them. Likewise, doctors must ensure that all of their telemedicine patients are physically located in the state(s) in which they are licensed to practice. Physicians can run into issues for providing prescriptions from unlicensed locations as well.

4. Unlawful Financial Relationships Between Telemedicine Companies and Other Providers

Commission-based referrals and other financial relationships between telemedicine companies, physicians, pharmacies, durable medical equipment (DME) distributors, and other entities will often violate the federal Anti-Kickback Statute unless they are specifically structured to satisfy all of the requirements of one of the statute’s regulatory “safe harbors.”

Due to the relative novelty of telemedicine, many practitioners and company executives are unclear on how the Anti-Kickback Statute applies to telemedicine practice. However, in this event of a federal audit or investigation, this lack of knowledge is not going to suffice as a defense strategy. While evidence of intent is required for criminal prosecution under the Anti-Kickback Statute, providers and businesses can face substantial civil penalties even for unknowing violations.

5. Inadequate Documentation of Medical Necessity

Proof of “medical necessity” is another recurring issue in telemedicine fraud investigations. Just like services, supplies, medications, and DME provided in the traditional healthcare setting, all telemedicine billings must be substantiated by evidence of medical necessity. Critically, determining that a particular service or item is medically necessary is not solely the physician’s responsibility. Telemedicine companies, pharmacies, DME suppliers, and other entities can all face prosecution for fraudulent billings when evidence of medical necessity is lacking.

6. Failure to Comply with Telemedicine-Specific Federal Guidelines

There are various other rules and regulations that apply specifically to telemedicine companies and other providers that bill Medicare, Medicaid, Tricare, the DOL, and the VA. In order to avoid attracting federal scrutiny (and to protect themselves in the event of a data-driven audit or investigation), telemedicine companies and other providers must develop compliance programs that comprehensively address all of the various unique aspects of telemedicine practice. This, of course, is addition to the general compliance obligations facing all program-participating healthcare providers.

7. Other Medicare, Medicaid, Tricare, DOL, and VA Fraud Issues

While there are various aspects of Medicare, Medicaid, Tricare, DOL, and VA compliance that are unique to telemedicine, telemedicine providers must ensure that they are in full compliance with the general program billing requirements as well. Along with establishing medical necessity and avoiding unlawful compensation-based referral relationships, this also includes establishes appropriate policies and procedures to prevent double-billing, upcoding, unbundling, phantom billing, and other common billing and coding violations.

10 “Red Flags” for Telemedicine Fraud Investigations

Within each of these seven general areas, there are numerous specific issues that must be comprehensively addressed in order to build and maintain a compliant telemedicine practice. For example, the following are ten “red flags” that significantly increase telemedicine companies’ and other providers’ chances of being targeted in a federal fraud audit or investigation:

1. Large telemedicine practices that span multiple states.
2. Lack of a documented telemedicine compliance program.
3. Lack of internal auditing, monitoring, and enforcement mechanisms (including failure to designate a compliance officer or board).
4. Inadequate controls to determine patients’ physical locations during physician consultations.
5. Written agreements between telemedicine companies, doctors, and other providers that include provisions for interparty compensation.
6. A high volume of referrals to specific providers who routinely order the same medications or DME.
7. A high volume of referrals to specific providers who routinely provide the same service and/or diagnosis.
8. A high volume of billings for services with high reimbursement rates, such as CGX and PGX testing.
9. Repeated billing and coding violations, including use of traditional billing codes when telemedicine-specific billing codes should be used.
10. Other billing “anomalies” that suggest (although do not conclusively demonstrate) that providers are improperly charging for services, supplies, medication, and DME provided to program beneficiaries.

Federal Telemedicine Compliance Lawyers with Proven Experience in Federal Audits and Investigations

Oberheiden, P.C. is a team of federal healthcare lawyers and consultants who are highly experienced in the areas of federal billing compliance, DEA compliance, and healthcare fraud audits and investigations. We rely on this experience to help our telemedicine clients develop and implement comprehensive and custom-tailored compliance programs that are designed to provide complete protection in the event of a federal inquiry. When you choose our team to represent you, you will work directly with our senior lawyers and consultants at all times, and we will ensure that you have a thorough understanding of what you need to do to avoid government scrutiny.

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If you have questions about telemedicine compliance, we encourage you to get in touch. To get started with a complimentary and confidential needs assessment, call us at 888-680-1745or request an appointment online today.