Brace Yourself: Post-Pandemic Fraud and Abuse is Coming

Fraud and abuse could soon be spreading like the coronavirus.

I had strongly thought about not discussing anything COVID-19-related this week, but it is the story of 2020 so far, so I felt I had no choice. For the majority of us, it has been a tough few weeks, trying to navigate through this unprecedented time of pandemic. While attempting to keep all of the rules, regulations, waivers, “relaxed rules,” etc. straight, something that creeped into my mind from day one was “brace yourself” – because it’s coming. I just knew that when monetary gain (yes, money) was at the core of some of these healthcare offerings, which are meant to assist the medical community in this unforeseen shutdown of the country, there would be some bad faith, or what I like to refer to as “bad actors,” taking advantage of the situation, and now it begins. My focus is telehealth, in this situation.

Every single day there is some new social media post, regulatory guidance, thought, or conflicting discussion about the newest telehealth and/or telemedicine rule changes that have come from the Centers for Medicare & Medicaid Services (CMS). I had to post and re-post blog updates on the topic because of all the confusion and misinformation that continues to circulate.

Even as recently as April 30, CMA (the California Medical Association) posted on its website an erroneous interpretation of CMS’s latest FAQs, but after contacting them, that has been taken down and revised with the correct information.

My overall concerns, however, center on the collateral and ancillary frauds that will result from the relaxed rules. With FaceTime, Skype, and telephone calls now qualifying as a reimbursed telehealth and telemedicine service from Medicare and private payers, there really is nothing to stop a telemarketing firm from initiating a call soliciting interest for products, services, and items with a doctor on the phone.

What about the potential hijacking of a provider’s NPI by a telemarketing firm that submits a claim for a virtual visit? Here is where the problem will be even greater. One of the relaxed rules comes from the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG), which released a statement noting that they were “announcing a policy of enforcement discretion for Medicare telehealth services furnished pursuant to the waiver under section 1135(b)(8) of the Act. To the extent the waiver (section 1135(g)(3)) requires that the patient have a prior established relationship with a particular practitioner, HHS will not conduct audits to ensure that such a prior relationship existed for claims submitted during this public health emergency.”

Was that really a good idea, to waive the requirement for that kind of physician personal knowledge of a patient, and the sanctity of that relationship?

With past investigations that involved the lack of a doctor-patient relationship, the greatly expanded use of telemedicine will afford unscrupulous providers the opportunity to submit a claim for a visit establishing a doctor-patient relationship that does not exist. These rules for telehealth opened up new patients to be seen for problems unrelated to COVID-19, meaning that non-emergent conditions are now being treated by physicians through the “Telehealth 1135 Waiver” that would not otherwise be allowed.

Keep in mind that the point of telehealth, when the rules first were expanded in early March, was to make sure “urgent needs” of patients who could not otherwise see a physician could be seen, continuity of care was preserved, and providers and patients protected. But now, with every “provider” and non-QHP under the sun wanting to get in on the telehealth act, I am seeing patients being solicited for encounters under the guise that “you need to be seen,” and telehealth visits are being billed when patients are not initiating the visit.

CMS was clear that physicians may “inform” their patients that telehealth visits are available, but nowhere have they said that soliciting for visits was acceptable. A reminder: any services billed to Medicare are subject to documented medical necessity under the Social Security Act.

Next is the continued confusion between the current telehealth definition under the PHE Waiver 1135 and the telemedicine definition. They are both very different, and many entities are reporting the rules from CMS erroneously. The American Medical Association (AMA) is one entity that is posting “tool kits and reference charts” that do not represent the correct information that CMS has repeatedly documented in its FAQ sheets and IFC (interim final rule) documents.

For providers billing the office or other outpatient evaluation and management (E&M) service codes, 99201-99215, the rules are clear from CMS FAQ sheet for Waiver 1135, updated April 30:

• Question: Is any specialized equipment needed to furnish Medicare telehealth services?

Answer: Currently, CMS allows telehealth services to be furnished using telecommunications technology that has audio and video capabilities that are used for two-way, real-time interactive communication. For example, to the extent that many mobile computing devices have audio and video capabilities that may be used for two-way, real-time interactive communication, they qualify as acceptable technology. For more information: https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/index.html

• Question: Can practitioners provide Medicare telehealth services using their phones?

Answer: Yes, for use of certain phones. Section 1135(b)(8) of the Social Security Act allows the Secretary to authorize use of telephones that have audio and video capabilities for the furnishing of Medicare telehealth services during the COVID-19 PHE. Additionally, CMS amended its regulations through the IFC to remove the potential perception of restrictions on technology that practitioners can use to provide telehealth services. The Office of Civil Rights has also issued guidance allowing covered health care providers to use popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, to provide telehealth without risk of penalty for noncompliance with the HIPAA rules related to the good-faith provision of telehealth during the COVID-19 nationwide public health emergency. For more information: https://www.hhs.gov/hipaa/for-professionals/special-topics/emergencypreparedness/index.html

• Question: What about beneficiaries who do not have access to smart phones or other technology that supports two-way, audio and video telecommunications technology?

Answer: The IFC (interim final rule) allows physicians and other practitioners to bill for certain telephone assessment, evaluation and management services during the PHE. These services were previously not separately billable. These services may be billed for both new and established patients. (Referring to codes 99441-99443, 98966-98968 and G2012-G2010)

CMS also issued clarified in its April 30 FAQ post that while some have interpreted the guidance as deeming office visits being allowed as audio-only phone calls, again, this is another misinterpretation. Specifically, CMS stated that:

Audio-Only Telehealth for Certain Services. Pursuant to authority granted under the CARES Act, CMS is waiving the requirements of section 1834(m)(1) of the ACT and 42 CFR § 410.78(a)(3) for use of interactive telecommunications systems to furnish telehealth services, to the extent they require use of video technology, for certain services. This waiver allows the use of audio-only equipment to furnish services described by the codes for audio-only telephone evaluation and management services (see designated codes. Unless provided otherwise, other services included on the Medicare telehealth services list, must be furnished using, at a minimum, audio and video equipment permitting two-way, real-time interactive communication between the patient and the distant site physician or practitioner.

Unfortunately, often, when someone sees the phrase “evaluation and management,” they make the incorrect leap that it means office visit codes. There is a full 57 pages of E&M services in the CPT® book. Only 10 codes represent office visit codes. CMS cited “certain” services, and referred to the telephone E&M codes found on page 39 of the 2020 Professional Edition of CPT®, along with other therapy codes, that used to only be eligible for face-to-face treatment.

What has been put out there erroneously is that a Medicare patient telehealth encounter without audio and video can be billed as an office visit E&M service. That is 100 percent incorrect, and that could be considered a fraudulent claim, or acting in “bad faith,” as it does not comply with the direction under the 1135 Waiver. A physician should not expect to get the same reimbursement for an audio-only call as an in-person visit. It is not the same. The audio and visual telecommunications come as close as you can to an office visit in person, and that is why the reimbursement is the same, during the PHE, as an in-person visit. The reason that CMS opened up this type of reimbursement that included audio and video as a rule to bill as an in-person office visit is that they want to get as close to an office visit code descriptor as possible.

Also in this spirit, CMS is aware that the elderly population may be challenged by how new technology works, such as FaceTime and Skype video chat, and some practices have not installed a telehealth software to assist, so the only option is an audio-only phone call with those patients. That is why CPT codes 99441-99443 (MD/DO) and 98966-98968 (for non-physician QHPs) are now allowed for reimbursement during the PHE. These codes are not billable during “normal” times, but Medicare was generous to open these up for reimbursement as of April 6, retroactive to March 1 (payment parity is also now closer to levels of service 99212-99214 reimbursement, as of April 30).

This is Medicare recognizing the difference. However, we still have providers protesting that a phone visit should be the same as a telehealth office visit, and that is not realistic, for Medicare patients. It is a telephonic visit, and codes are available to capture that service. The feedback I have been hearing is that some providers will bill however they want, and not comply with the rules. That is a dangerous option. The 95 modifier that is now mandatory for Medicare telehealth claims, per CPT, is listed as:

Synchronous Telemedicine Service Rendered Via a Real-Time Interactive Audio and Video Telecommunications System.

“Synchronous telemedicine service is defined as a real-time interaction between a physician or other qualified healthcare professional and a patient who is located at a distant site from the physician or other qualified healthcare professional. The totality of the communication of information exchanged between the physician or other qualified healthcare professional and the patient during the course of the synchronous telemedicine service must be an amount and nature that would be sufficient to meet the key components and/or requirements of the same service when rendered via face-to-face interaction. Modifier 95 may only be appended to the services listed in Appendix P. Appendix P is the list of CPT codes for services that are typically performed face-to-face, but may be rendered via real-time (synchronous) interactive audio and video telecommunications system.”

If you are a physician who adds this modifier on to a visit code, you are stating that your claim met the audio and visual criteria in the definition of telehealth. If you did not meet the audio and video rules, you would then be submitting a false claim.

Furthermore, one of the line items under the 1135 Waiver is “…related to the good-faith provision of telehealth during the COVID-19 nationwide public health emergency.” Also, “we believe this interim change will maintain overall relativity under the PFS for similar services and eliminate potential financial deterrents to the clinically appropriate use of telehealth.”

CMS has left the door open for an interpretation of what is “good faith” and what is clinically appropriate telehealth medicine, along with a reminder that this is temporary.

Providers need to ensure that the documentation is extremely specific to the service, and date-and-time-stamping would be a great way to enhance internal compliance, ensuring that there is adequate proof that the service was rendered in the manner in which it was submitted for reimbursement. From a payer perspective, I can only project that the analytics and auditing will be rolling out at a rapid pace once everyone wraps their heads around the potential fraud schemes.

I recommend that you internally and/or externally audit these services, making sure that you are compliant and above any suspected potential non-compliance or “bad faith” – or use your external auditor to determine that you are compliant. I have been auditing all telehealth records for my clients and would be happy to review yours. This is about protecting yourself against future targeted, specific audits and reviews and to ensure that your clinical documentation integrity mechanisms are appropriate, and you will not be refunding money if alleged to be non-compliant.

Programming Note: Listen to Terry Fletcher report this story live today on Talk Ten Tuesdays, 10-10:30 a.m. EST.