How providers document their telehealth technology may be ripe for a review in the wake of a report from the HHS Office of Inspector General (OIG) posted Aug. 2.[1]
OIG audited end-stage renal disease (ESRD) telehealth services delivered during the first year of the COVID-19 pandemic and found providers generally documented the telehealth part without elaborating. In other words, they didn’t specify that the telehealth modality was audiovisual.
During the public health emergency (PHE), CMS waived the Medicare requirement for the clinical examination of the dialysis access site to be performed in person, but it didn’t waive the requirement for use of an interactive telecommunications system, OIG said. “ESRD-related telehealth services during the PHE were still required to be provided using interactive audiovisual technology, not audio-only.”
No recoupment of overpayments was recommended, however, because CMS didn’t set forth telehealth-specific documentation requirements and providers “generally complied with billing requirements.” But OIG said “it would be beneficial for the medical records to document the type of telecommunications system used to perform the telehealth visit.”
The findings “present a compliance quandary for the provider community,” said attorney Kyle Gotchy, with King & Spalding in Sacramento, California. If physicians and other practitioners aren’t documenting the type of technology they use to deliver telehealth services, how will the compliance team verify that telehealth services are provided consistent with the requirements of a specific service or payer? “It creates the risk that your compliance function is flying blind about what’s happening on the ground, so I resist the notion that doing the bare minimum is best practice,” Gotchy said.
Report Is ‘A Canary in A Coal Mine’
According to the report, OIG audited a stratified random sample of 100 claim lines of ESRD-related telehealth services provided from March 1 through Dec. 31, 2020. Of the 88 claim lines that OIG verified were delivered by telehealth, “medical records for 64 claim lines did not identify the type of telecommunications systems used in any of the telehealth visits. Therefore, we could not determine whether telehealth services were provided using an interactive telecommunications system using audiovisual technology that was non-public-facing.” Examples of common phrases in the medical records included “telehealth visit,” “encounter completed with telehealth” and “telehealth visit during the COVID-19 pandemic,” OIG said. Seven included “telehealth encounter using audiovisual technology, performed according to state requirements.”
A handful of ESRD claims were unallowable—for example, two were billed based on audio-only telehealth—but OIG isn’t asking for recovery of the money “because the effect is immaterial.”
The OIG report is “a canary in a coal mine with respect to other compliance concerns outside of Medicare,” Gotchy said. Are there requirements beyond Medicare “that have either a clear or an implicit documentation requirement? I think there are.” For example, most Medicaid programs have informed consent requirements that include the patient agreeing to receive telehealth services through a particular modality. But reliance on Medicare’s flexibility may have “set us up for foot faults with respect for requirements that live elsewhere,” Gotchy explained.
It’s probably an easy fix for providers—“a quick phrase you can incorporate into your electronic health records.”
Contact Gotchy at kgotchy@kslaw.com.