Fraud and Abuse: COVID-19 and Telehealth

In this episode of our monthly series on fraud and abuse issues, Matthew Wetzel, Associate General Counsel, Compliance Officer, GRAIL, speaks with Janice Jacobs, Managing Director, Berkeley Research Group (BRG) and Amar Rewari, M.D., M.B.A., Associates in Radiation Medicine, about the emerging use of telehealth during the pandemic. The podcast discusses how physicians are using telemedicine during the pandemic, what the future of telehealth might look like, policy implications, and fraud and abuse risks. From AHLA's Fraud and Abuse Practice Group. Sponsored by BRG.

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Transcript

Speaker 1: 0:14

The following message and support for A H L A is provided by Berkeley Research Group, a global consulting firm that helps organizations advance in the areas of disputes and investigations, corporate finance and strategy and operations. BRG helps clients stay ahead of what's next. For more information, visit think brg.com.

Speaker 2: 0:34

Thank you all for joining us for another edition of a HLAs Fraud abuse podcast, where we bring you the latest hot topics and trends in healthcare fraud and abuse and enforcement. My name is Matt Wetzel. ALA's, vice Chair of Educational Pro programming for the Fraud Abuse Practice Group. Today we're talking about telemedicine and telehealth. How has it been impacted by Covid 19? What telemedicine policies are ripe for change and which will stay the same? And what are some of the downstream fraud and abuse implications of telemedicine? With me today are two special guests. First, Dr. Amerri is a board certified radiation oncologist based in Washington dc. He practices with the Associates in radiation medicine practice in Rockville, Maryland, and also sees patients at Adventist Healthcare, radiation Oncology Centers. Uh, Amer is an emerging leader in healthcare policy and payment reform, especially in the field of oncology. He serves as the chair of Astros Code Development and Valuation Committee, the AMA r Alternate Advisor, and a chair of the wor of a work group developing a radiation oncology alternative payment model for Maryland's episode quality improvement program. Among many other efforts, Amer is a faculty speaker and organizer of the annual Astro Coding and Coverage Seminar, and an editor and contributor to Astros Coding Manual. And he serves on ACRs economic Committee on radiation oncology, as well as ASCO's Clinical Practice Committee. Uh, Dr. Roars previously worked in the office of the chairman at Aetna as a health policy associate and a healthcare group at Credit Suis as an investment banker, and currently serves as a trustee at the Fund for Education Abroad. He graduated Summa Laude and P Beta Kappa from Temple University and received his MD and his M MBA from Yale. He also also happens to be a great friend of mine. So welcome Amer. Uh, also with us today is Janice Jacobs. She's the managing director of the Berkeley Research Group, also in Washington dc. Janice and her team perform a variety of billing and coding compliance audits spanning multiple areas and specialties. This includes evaluation of management, emergency departments, ambulance, ambulatory surgery, infusion and injections, skilled nursing facilities, durable mead, medical equipment, and much, much more. Janice has also served as the I r O or independent review organization for clients under multi-year corporate integrity agreements, and she's also led audit teams on a variety of due diligence reviews, uh, for private equity clients, including a multi-billion dollar air ambulance acquisition. So welcome, Janice, as well. We're happy to have you here on the podcast. I think, you know, we'll just jump right into it. First question is for you, Dr. Rian, preparing for the podcast. Today, we had a deep dive discussion about telemedicine and telehealth, and we spent a lot of time on the current COVID 19 situation. How has COVID 19 impacted your practice and what changes have you seen with respect to telemedicine and telehealth, especially over the last month? Well, uh, thanks Matt for, uh, having me and the American Health Law Association. Uh, so yeah, you know, covid, uh, 19 has really had a big impact on, uh, oncology practices. You know, we, uh, we treat cancer patients who are, um, very a part of the very vulnerable population, and so we wanna, uh, protect them from getting covid 19. Um, and so, uh, it's, it's affected, um, how we see these patients and, um, you know, being able to provide social distance to, uh, keep our patients safe and our staff safe has been really critical and important to, to still maintaining our ability to treat cancer patients. So, um, telemedicine originally, uh, was actually very limited and, and we didn't utilize it much as physicians because it was kind of limited to only e established patients who we already had a relationship with in either rural areas or underserved areas. Reimbursement was, uh, poor for these, um, uh, visits and, uh, there was a lot of regulatory and privacy issues that prevented us from doing it. And so after the Covid pandemic, the administration really opened up a lot of these barriers, and so we were able to, since March, um, now see patients with equivalent reimbursement as face-to-face visits, we were able to, uh, um, uh, see new patients as well. And so they don't just have to be established patients. We can see'em across any jurisdiction, whether it's in an office setting, a hospital setting, an inpatient setting. And also, uh, there was a waiver that was, uh, passed that allowed, um, a waiver to allow the HIPAA requirements and, and regulatory requirements. So now we can just use even our personal smartphones with FaceTime and Google Hangouts or Skype to have these, uh, interactions with our patients. So it's really, um, been a, a, a big thing. And actually, I would say probably most of our practices have transitioned almost exclusively to tell medicine now, uh, when we are able to. And, and tell me, uh, what's your patient's, uh, what your patient's reactions, what have they been, uh, to the increased use of telemedicine, telehealth? Is this something they find useful, helpful? Do they appreciate it? Uh, uh, what's the, what's the patient consensus on this? I think they, they love it, to be honest with you, because they were very concerned. You know, I would get a lot of, uh, discu calls from my patients who had new consultations with me who would be concerned that, you know, they have cancer, they're in their, uh, over age 70, a lot of'em, and they were just concerned about leaving the house. So now they can have these discussions with me, you know, on the, on the phone, uh, from their own homes, uh, safely. And so, um, you know, from their standpoint, I think, uh, it's been, it's been a blessing. That's great. That's great to hear. And, and, and Janice, it sounds like, uh, perhaps we've entered a new era for telemedicine with your agree with that statement. And, and from your perspective, Janice, what covid 19 related changes to telemedicine do you think will become more long lasting or more permanent? Uh, thank you, Matt. Um, and yes, uh, we definitely have entered into a new era, I believe, for telemedicine, and Dr. Rori outlined a lot of the changes that have been put in place during this pandemic that we are living through. And of the changes that he mentioned, um, for example, up until now, the patients needed to be seen at an approved location, uh, as well as the physician needed to be at an approved location, needed to use HIPAA approved audio, visual equipment used to be mainly used in rural areas, uh, et cetera. So I can see that rural and originating site restrictions being, uh, potentially being permanently removed. I think that this pandemic has forever changed everyone's perception of the safety in public places, including, or maybe especially for medical facilities and offices. So, at least for the foreseeable future, I think that high risk individuals especially will feel more comfortable receiving medical care from their home. Um, as providers, patients and payers all become more comfortable with telehealth, I think it's going to be logical for CMS to permanently ease, uh, access to these services. And so I think that, uh, you know, the use of smartphones, iPads, that type of situation, I think that while there may be, you know, parameters placed in guidelines established around exactly how those, those devices can be used, I think that that will be here to stay. I think the idea of seeing a patient in their home that will be here to stay when you think about it Also, um, one byproduct from this pandemic is the physicians themselves who have been exposed to, but not sick, not exhibiting symptoms, preventing them from working, but they have been exposed, so they cannot see a patient face-to-face. They can, however, still, still, still treat a patient or evaluate a patient virtually. So that in itself has eliminated a huge, um, you know, sure potential shortage of, uh, care providers that would otherwise not have existed. So I think that everyone, the physicians, the, uh, cms, the patients, everyone is looking at telemedicine through a completely different lens now. So I, I do think that it's here to stay. Well, that's a interesting observations, Janice. Thank you so much. And it sounds like there's a lot of benefit to telemedicine and telehealth, uh, that's being, uh, highlighted or spotlighted during this current, uh, pandemic. And, uh, you know, you both had mentioned a couple of those from, uh, you know, the benefit to rural patients, the benefit to physicians, just in terms of their own safety, uh, the ease and convenience, uh, for other patients. Uh, um, question for you, um, how is CMS working at this? What policy changes or prognostications that you might have for CMS policy changes, uh, that would be impactful, especially given some of these benefits of telemedicine that we're seeing right now? Yeah, I mean, that's a good question. I, I think, um, CMS is gonna really be looking at this very closely because it's kind of a large nationwide experiment on, on a, on, on a very broad scale. Um, for, for example, uh, they've loosen a lot of requirements also related to supervision. Um, many times prior to this, uh, therapeutic services had to require direct supervision, which means the physician had to be directly available to interject in, in the care of a, a patient. Now, that kind of supervision can be provided remotely with audio visual capabilities. And so I think they're gonna be looking at safety issues regarding that. Are there going to, are there gonna be, um, instances, uh, of, of safety that will be reported? Will there be instances of fraud and abuse related to that? Um, and that, so that's fascinating. Another thing that I think they may be looking at will be reimbursement related issues. And as a provider, this is something that we're also going to be, uh, looking at because, you know, the way we are, uh, reimbursed is based on physician time, work intensity, as well as, um, practice expense. And so all those parameters can drastically be changed now with telemedicine, um, not just for seeing, uh, patients like in terms of, uh, initial consults or follow ups, but also for some of our procedural, um, codes that have now been made telemedicine. So, you know, we would really want to make sure that, uh, cms, uh, recognizes that there's a lot of medical decision making and intensity that's still involved in us doing these things remotely. Um, but maybe, you know, uh, how that would affect time and practice expense, uh, could definitely affect reimbursement. Great points, uh, um, really great points. And, you know, you mentioned fraud and abuse, and, you know, I might kick it over to Janice for some observations on some of the fraud and abuse risks you see trending in telemedicine and telehealth. And, you know, as I think about some of the concepts that you and Dr. Roar have been discussing, it really brings to mind some of CMSs and, uh, OIGs recent proposals for revising the Stark Law regulations and the anti-kickback statutes St Harbors, to permit more value-based care, more collaboration across provider types, uh, and the like. So, you know, as we look at that fraud and abuse universe and that fraud and abuse universe changes, uh, especially over the next couple of months when we're, when we might see some finals there, you know, what, what, what do you see as some of the, Janice, some of the risks, fraud abuse risks in telemedicine and telehealth? And more specifically, what controls do you think would be impactful to help minimize those risks? Sure. So I, I can see over billing and improper payments being an issue, especially for the time-based codes, also, you know, billing for services that were not performed at all or not performed to the standards that they should be. So we'll, we'll need to educate providers and coders, whoever is actually submitting those codes, uh, on clear and complete documentation that'll be necessary to ensure accurate billing and coding. And also, uh, E E H R updates will need to be developed and implemented. As with any other change or update, there needs to be clear policies, uh, and procedures with provider en coder education and training. I think there will be, um, problems. And, and, and Dr. Wan mentioned this before, but I, I think that there will be problems with discrepancies on evaluation and management services ver versus what we have now as virtual check-ins and e-visit. So there's gonna need to be clear guidelines on where one ends and another one begins. Up until now, evaluation management services, as we've been talking about, were face-to-face virtual check-ins and e-visit, were part of telehealth services. And now that evaluation and managements can be performed as telemedicine visits, how does that differ from a virtual check-in or an e-visit? Uh, what is the difference in documentation? Um, will the virtual check-ins or e-visit go away? And if telemedicine, the telemedicine version of the valuation management take over, that's where I think there will be some confusion. I also see another area as problematic is the obvious absence of the exam component with more heavy reliance on the medical decision making and time as the driver of the code selection. So as we know, phone visits tend to be shorter in duration than in-person visits. So billing based on time would result in a much lower level service than if the visit occurred in person. Therefore, your evaluation and management medical decision making component will need to be very thoroughly documented to support the higher levels of services. So I think I see where that will be, where there's going to be some gray areas and some confusion and could be a, a factor for potential overpayments. And we we're, we're talking a lot about cms, but not only cms, but other payers will also be struggling with, um, you know, how to adequately adjudicate these claims. What was done, what wasn't done, is the documentation sufficient? So I think, again, back to how to mitigate these risks, I think, you know, getting clear guidance, developing your internal policies and procedures, educating and training your physicians and clinicians and coders, and then doing your due diligence with internal auditing and monitoring and appropriate corrective action so that you can continue to refine the process to mitigate any potential overpayment risk. Uh, that's great guidance, Janice, and, and, and really good insight. And I think, you know, as, as somebody who, uh, uh, also has a deep background in fraud abuse, I think it's, it, it's probably pretty, uh, easy to conclude that, you know, as, uh, as the policy restrictions perhaps lighten as a result of covid 19, the, the, you know, the specific technical requirements, uh, needed to engage in telemedicine. Uh, there will be additional expectations from the government on other controls, uh, on the other side of that. So I think, I think we can certainly expect to see that. Um, Amer, uh, just to pivot back to you on some of these, uh, other policy areas, you mentioned supervision requirements. What other policy areas do you think, um, telemedicine or telehealth might impact in the future? Where could this be an experiment, uh, for other types of services, uh, moving forward and, and, and, and, and what are some other, uh, areas of change? Right. And, um, you know, I echoing what Janice said, uh, there's a lot of unknowns going forward. You know, one of the issues that she mentioned was issues related to private payers, how they're gonna kind of, uh, respond, uh, to these, uh, uh, changes going forward. I mean, oth other issues for policy, I think one of them would be related to, uh, quality and patient satisfaction. You know, since as, as Janice mentioned, we've, um, eliminated the physical examination by doing a lot of this stuff remotely. And so how would that actually impact, um, the doctor-patient relationship? If you're not really having face-to-face encounters, are patients still gonna be satisfied? What, how will satisfaction surveys look going forward, uh, out of this? Um, you know, another in interesting issue is related to education and training. You know, um, when we're doing everything remotely now, will our residents and fellows still receive adequate training in the same level of training that they, they had received prior, uh, with, uh, face-to-face interactions? Um, and then finally, I think, uh, issues related to access. I mean, right now, the way these regs are, are, are made, uh, or are done is that reimbursement is equivalent on face-to-face, uh, inter, uh, as equivalent to face-to-face interactions only for, um, delivery platforms that utilize both audio and visual components. So they're actually much, uh, more reduced for telephone only, um, interactions. And so a lot of patients who are elderly or, um, economically disadvantaged or in rural areas don't have access to, to video capabilities or aren't, um, skilled enough to, to be able to use them. And so whether that would kind of create like a almost a two-tiered system where you'd be doing telemedicine on a certain population of patients and face-to-face interactions on another population based on access issues. So, um, a lot we don't know in a lot of, we'll find out if time goes on. I'm hearing, um, from both of you, uh, Dr. Rian and, and, and, and Janice that, uh, you know, there's almost, as a policy is catching up with reality right now we're that we've been forced into this new normal where, uh, you know, all the restrictions and administrative requirements of telehealth and telemedicine has almost been thrown out the window and necessarily, so I guess Janice, you know, final question for you. As you know, as the government, uh, changes its pace and, and takes a, you know, a deeper look at telemedicine for private entities or for providers, uh, what changes would you recommend or suggest for current compliance programs that might address this acceleration of telemedicine? So for any provider that is submitting claims to a government organization, they should already have their compliance programs in place. But even so, each of each one of those compliance programs will have to be updated to account for all of the new telemedicine, um, services that are being provided. So without getting into each one of the seven elements of the compliance program, just at a high level, the policies and procedures will need to be updated to include either include telemedicine from the start as some practices weren't using telemedicine before, or to revise their policies and procedures around telemedicine to include the services that can be provided, the approved technologies, equipments, devices, um, how to obtain informed consent, how to document the evaluation and treatment of the patient. Now that you don't have that patient physically present in front of you. Um, any applicable state regulations, any prescribing guidelines and any updates to billing and coding will all need to be revised in the current compliance programs. Under the auditing and monitoring component of the compliance programs, work plans will need to be expanded and developed to include telemedicine, billing and coding, and particularly post pandemic. This needs to be done sooner than later because if you think about this, this is a, you know, unprecedented if a global pandemic, but in the United States, it's affecting virtually every provider. So every provider's going to have some sort of impact by, by what is taking place now. So every auditing and monitoring program should be updated to include telemedicine. Every education and training, uh, component of the compliance program will also be, need to be updated for everything we talked about for billing and coding, privacy and security provider, uh, documentation, clinical documentation training, HIPAA training, and so forth. And then finally, with, um, the investigation and reporting, um, the process probably wouldn't change, but everything should be reviewed to, uh, make sure that telemedicine is taken into consideration. And then also your internal communication component will need to be reassessed to see how you are going to deliver the message throughout your entire organization. For smaller physician practices, it's probably not gonna be that complicated, but when we are talking about the larger academic medical centers, the larger health systems, and the very large physician practices, the communication plan for delivering telemedicine compliance updates will be critical. Janice, that's great. Thank you so much. And as we draw to a kind of a close here, let me just, uh, ask both of you any final words, any parting, uh, wisdom for our listeners to the ALA Fraud and Abuse podcast. Um, be safe at home and, uh, socially distance yourself. So, uh, we don't overload our healthcare systems.<laugh>,<laugh> word words of words of wisdom. Words of wisdom. That's great. Well, uh, I'm Martinez. Thank you so much for your fascinating insights and for sharing your expertise with us. This has been a really tremendous conversation and I'm so appreciative and I know our, uh, a H l A listeners are as well, and of course, a huge thank you to our podcast sponsor, the Berkeley Research Group. We appreciate everything you do for us, B r g, and for all of your efforts to make this podcast a success. We look forward to our next episode together. Thank you and take care.