Telehealth's Moment: The Effect of COVID19 First Wave Enforcement Actions, and What Lies Ahead for Compliance and Enforcement in Healthcare’s Hottest Area 

December, 2020 - Ty Howard, Janus Pan


If 2020 has been defined by COVID-19 pandemic, the healthcare industry in 2020 might be defined by a related single issue — telehealth. Those phenomena are obviously connected. While telehealth has been around in varying forms for years, COVID-19 accelerated its growth, use, and acceptance in unprecedented ways.

With that growth comes changes. Reimbursement rules have evolved as telehealth has grown and become more accepted. We expect that trend to continue into next year. Likewise, compliance and enforcement will evolve as rapid industry changes occur, a phenomenon just now emerging with telehealth.

Below we review the key changes in telehealth reimbursement, the effect of COVID-19, and the early stages of compliance and enforcement — and what the next wave of enforcement may look like in 2021 and beyond.

Telehealth Background

Telehealth, telemedicine, and related terms (collectively, “telehealth”) refer to the exchange of medical information from one site to another through electronic communication to improve a patient’s health.1 The Centers for Medicare and Medicaid Services (”CMS”) reimburses telehealth services under Medicare and Medicaid fee schedules, and commercial payors reimburse telehealth services by waiving patients’ cost-sharing obligations.

CMS commonly describes telehealth and similar services as: “full telehealth visits,” where patients use telecommunication technology for office, hospital visits and other services that otherwise occur in-person; “virtual check-ins,” where patients communicate with practitioners through synchronous discussion over a telephone or exchange of information through video or images; and “e-visits,” where patients have non-face-to-face patient-initiated communications with doctors through online patient portals.

But telehealth services also manifest in other forms, including remote monitoring, store-and-forward technologies, and synchronous and asynchronous chart review and consultations.

A Complex Legal Landscape

Telehealth potentially implicates many different legal and regulatory authorities. First, federal fraud-and-abuse laws (and in many cases, their state-law counterparts) are at issue, including the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b); the Stark Law, 42 U.S.C. § 1395nn; healthcare fraud, 18 U.S.C. § 1347; and many other more general-application statutes such as the False Claims Act, 31 U.S.C. § 3729 et seq.

Second, differing reimbursement rules apply — rules that, as described below, are changing rapidly. And finally, there are state-specific regulations and medical-profession-related laws that could be implicated by telehealth services, depending on the jurisdiction, the service, and the healthcare provider involved.

Reimbursement Rules

Much of the legal landscape turns on reimbursement issues, particularly from government insurers. Historically, CMS reimbursed telehealth services to increase service access to rural communities.

The general rules reflected this focus: qualified practitioners could be reimbursed for telehealth services provided to beneficiaries who were from certain rural areas with documented shortages of healthcare services, who obtained those services at a designated originating site (e.g., a hospital or skilled nursing facility) and through a two-way audio/video communication, and who obtained telehealth services covered by a limited range of CPT codes. While state Medicaid rules varied from state to state, reimbursement was likewise often limited based on geographic and modality factors.

Republished with permission. The full article for, "Telehealth's Moment: the Effect of COVID19 First Wave Enforcement Actions, and What Lies Ahead for Compliance and Enforcement in Healthcare’s Hottest Area," was published by Thomson Reuters Westlaw on December 30, 2020, and can be found here.


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