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An increasing number of clients approach the attorneys of Oberheiden, P.C. because they were notified by authorities that they are under investigation for their telemedicine and telehealth practice—providing our case involvement and experience from San Francisco to Miami and from Colorado to New York. While previous blogs on Federal-Lawyer.com have addressed the grounds for investigation and proven defense strategies, the purpose of this edition is to provide a brief summary of applicable Medicare rules and standards.
Medicare as Helpful Guidance
Taking a look at the Medicare rules for telemedicine offers a pair of insights. For one, Medicare rules often serve as important yardsticks for other insurance plans, and telemedicine is no exception. For another, physicians that follow Medicare rules tend to be less at risk for investigation, because compliance with the arguably stricter Medicare regulations may reduce their exposure for wrongdoing with respect to other programs.
According to publications by the U.S. Department of Health and Human Services, the Medicare Fee-For-Service Program reimburses for telemedicine services only under narrow conditions. Among the requirements are the following factors:
- The eligible Medicare beneficiary must participate from an accepted Originating Site. An Originating Site is the location where the patient is present at the time of the telecommunication therapy.
- The Originating Site must be in a Health Professional Shortage Area (HPSA) or outside a Metropolitan Statistical Area (MSA).
- Telemedicine is not allowed from the patient’s home, but must take place inside a medical facility such as a doctor’s office, a hospital, or a regional clinical center.
- The interaction between patient and doctor has to be face-to-face, which means it has to be a live videoconference with the patient being present.
- The services and consultations provided must be an accepted reimbursable service.
- Accepted providers must use an interactive (person-to-person) audio and video telecommunication system.
Who Is Eligible to Furnish Services?
Subject to state law and additional restrictions, physicians, nurse practitioners, physician assistants, nurse-midwives, clinical nurse specialists, certified registered nurse anesthetists, registered dietitians, registered nutrition professionals, and, to some extent, clinical psychologists and clinical social workers are permitted to furnish and bill for telehealth and telemedicine services.
Where Must the Patient Be During the Consultation?
Against common misconception (and dangerous practice), it is not permissible for a program beneficiary to consult from the patient’s home or other place of choice at the time of treatment. Instead, Medicare requires that the patient be present at one of the following authorized sites:
- Critical Access Hospitals (CAH)
- Rural Health Clinics
- Federally Qualified Health Centers
- Skilled Nursing Facilities (SNF)
- Community Mental Health Centers (CMHC)
- Physician Offices
In the cases that we have represented, we noticed a number of reoccurring mistakes that caused the government to investigate our clients. The five most common mistakes were:
- Utilization of an unapproved code; not all traditional CPT codes apply to telemedicine.
- Allegations of illegal kickbacks between physician and third party (pharmacy, marketer).
- Violation of Medicare, Tricare, or Department of Labor rules.
- Treatment of patients from states, in which physician is not licensed.
- Unauthorized prescription practice.
We are a team of healthcare defense lawyers with a track record of dozens of cases resulting in no civil and no criminal liability for our valued healthcare clients.
- Nick Oberheiden has successfully represented physicians, healthcare executives, hospitals, regional and national marketing groups and many others in proceedings before the Department of Defense, Department of Labor, Department of Justice, the Office of Inspector General, the Department of Health and Human Services, the FBI, the DEA, the U.S. Secret Service, the U.S. Postal Service and many other federal agencies.
Our Telemedicine Experience
Like few firms in the country, we have handled all aspects of telehealth and telemedicine defense in cases across the country, including:
- Telemedicine and Prescription Practice
- Telemedicine and Compound Pharmacy Referrals
- Telemedicine and Anti-Kickback Issues
- Telemedicine and Stark Law Questions
- Telemedicine Defense (Department of Justice)
- Telemedicine Defense (FBI, OIG Investigations)
- Telemedicine Defense (U.S. Attorney’s Office)
- Telemedicine Defense (HEAT Task Force, Florida)
- Telemedicine Defense (Medicare Fraud Strike Force), etc.
If you want to discuss your telemedicine questions with a former federal healthcare prosecutor and experienced healthcare defense attorney in a free and confidential consultation, then you should call Nick today.
This information has been prepared for informational purposes only and does not constitute legal advice. This information may constitute attorney advertising in some jurisdictions. Reading of this information does not create an attorney-client relationship. Prior results do not guarantee similar future outcomes. Oberheiden, P.C. is a Texas LLP with headquarters in Dallas. Mr. Oberheiden limits his practice to federal law.