OIG Reports Indicate the Government's Interest in Balancing Ongoing Telehealth Access With Increased Oversight

On September 2, 2022, the OIG released a report analyzing Medicare claims data from approximately 742,000 providers who billed for a telehealth service during the first year of the COVID-19 pandemic. The OIG found that the use of telehealth increased dramatically during the first year of the pandemic. According to the OIG, Medicare beneficiaries used 88 times more telehealth services during the pandemic’s first year than in the prior year. The report recognized the importance of telehealth services and the role such services will play for Medicare beneficiaries even after the pandemic ends, but also recognized the ongoing challenges the government faces in ensuring telehealth services are legitimate and provided in accordance with Medicare’s requirements. The OIG urged the Centers for Medicare & Medicaid Services (CMS) to conduct targeted oversight of the telehealth services to prevent fraud, waste, and abuse. 

A companion report also issued by the OIG analyzed the demographics of beneficiaries most likely to use telehealth and emphasized the important role telehealth played in Medicare beneficiaries’ access to care. The companion report noted that unless policymakers take action, millions of beneficiaries will lose access to many telehealth services once the pandemic ends and the temporary exemptions to Medicare’s telehealth requirements terminate. To combat this loss of access, the OIG urges CMS to seek additional authority from Congress to continue access to telehealth services beyond the termination of the Public Health Emergency (PHE). 

The OIG’s Seven Measures for Identifying High-Risk Providers

One of the ongoing challenges with respect to the expansion of telehealth services has been the concern that telehealth is particularly ripe for fraud, waste, and abuse issues. The OIG highlighted these challenges in its report and the importance of effective, targeted oversight of telehealth services by CMS to ensure that the benefits of telehealth are realized long-term, while minimizing the risk to Medicare and its beneficiaries. 

To identify providers whose billing for telehealth services poses a high risk to Medicare, the OIG developed the following seven measures for CMS to scrutinize: 

1. Billing both a telemedicine service and a facility fee for most visits. Providers generally should not bill both the facility fee and a professional telehealth service fee for the same visit. When the originating site for a telehealth service is a facility (i.e., where the patient is located) and the physician is located at a separate distant site, the facility can charge Medicare a facility fee for hosting the telehealth service, but the physician who provides the telehealth service may not bill for the facility fee. The OIG report recognized that although some providers may be billing for a facility fee in error, others may be doing so to inappropriately maximize their Medicare reimbursement for telehealth visits.
    
2. Billing telehealth services at the highest, most expensive level every time. While it is appropriate for providers to bill for complex patient encounters using the highest evaluation and management (E&M) codes, when a provider only bills the highest E&M codes, it suggests the provider may be delivering higher levels of services than were medically necessary or billing for levels of services that were not actually rendered.
    
3. Billing telehealth services for a high number of days in a year. The OIG found that over 300 providers billed for telehealth services more than 300 days of the year, averaging more than 25 days of telehealth services per month. The numbers for such high-frequency billing providers exceeded the median of 26 days of telehealth service per year for all providers who billed Medicare for telehealth services. The OIG concluded that billing for telehealth services for a high number of days could indicate that the billed services were fraudulent.
    
4. Billing both Medicare fee-for-service and a Medicare Advantage plan for the same service for a high proportion of services. According to the OIG, over 18,000 providers billed both Medicare programs at least once during the first year of the pandemic. While double billing both Medicare Part B and a Medicare Advantage plan is always an erroneous billing practice, the OIG did not consider such double billing as indicating a high risk provider unless a provider’s double billing accounted for more than 20 percent of the provider’s claims. (In other words, the OIG recognized that double billing, in some instances, could result from a simple error.) In total, 138 providers billed both Medicare programs for more than 20 percent of their telehealth services. The OIG concluded that repeatedly billing both Medicare programs for the same service may indicate that providers intentionally submit duplicate claims to increase their Medicare payments.
    
5. Billing a high number of hours of telehealth services per visit. In total, 86 providers billed for an average of over 2 hours of telehealth services per visit, greatly exceeding the median of 21 minutes of telehealth services per visit for all providers who billed for telehealth services. Routinely billing for such lengthy services could indicate the billing is fraudulent.  
    
6. Billing telehealth services for a high number of beneficiaries. The OIG concluded that 76 providers each billed for telehealth services for at least 2,000 beneficiaries in a year, far exceeding the median of 21 beneficiaries per year for all providers who billed for telehealth services. The OIG emphasized the improbability of these numbers, and that the billing practice may indicate that the provider is billing for services that were not provided or, if provided, raises serious concerns about the quality of care.
    
7. Billing for a telehealth service and ordering medical equipment for a high proportion of beneficiaries. In total, 67 providers billed for telehealth services and then ordered medical equipment and supplies for at least half of their beneficiaries. As we previously reported in our Investigations Blog and Health Care Counsel Blog, billing medical equipment and supplies for a high percentage of beneficiaries raises concern, as this practice has been linked to known fraud schemes.

The OIG’s Recommendations and CMS’s Response 

The OIG made the following five recommendations to CMS: 

1. Strengthen monitoring and targeted oversight of telehealth services. The OIG suggested the seven measures identified in its report be used to design CMS claims analysis and used by stakeholders to inform future oversight efforts.
    
2. Provide additional education to providers on appropriate billing for telehealth services. The OIG emphasized that education, including one-on-one educational programs, can be beneficial in correcting provider billing issues. 
    
3. Improve the transparency of “incident to” services when clinical staff primarily delivered the telehealth service. The OIG noted that incident-to billing creates challenges for oversight because it allows services provided by clinical staff directly supervised by a practitioner to be billed under the supervising practitioner’s identification number. The OIG deemed it critical for program integrity efforts to identify the individual who delivered the telehealth service billed to Medicare. The agency suggested methods such as using a modifier to identify “incident to” billing and providing the clinical staff identification numbers, when available.
    
4. Identify telehealth companies that bill Medicare. The OIG highlighted that some of the identified high-risk providers appeared to be associated with telehealth companies, but there is no systematic way to identify the companies in the Medicare data. The OIG recommended that CMS update the Medicare provider enrollment application to identify telehealth companies that enroll in Medicare or work with the National Uniform Claim Committee to add a taxonomy code that identifies telehealth companies. 
    
5. Follow up on the providers identified in the OIG’s report. The OIG separately referred the providers it identified as “high risk” providers to CMS for additional monitoring and follow-up. In its response to the OIG’s recommendations, CMS noted that it would review the providers identified by the OIG as being “high risk,” and compare those providers against the telehealth providers already identified by CMS for potential additional oversight actions.  

In its companion report, the OIG made additional recommendations to CMS highlighting the OIG’s goal to make widespread telehealth access permanent. These recommendations include:  

1. Taking appropriate steps to enable a successful transition from current pandemic-related flexibilities to well-considered long-term policies for the use of telehealth for beneficiaries in urban areas and from the beneficiary’s home. The OIG recognized the important role that telehealth played in Medicare beneficiaries’ access to care and emphasized the importance of ensuring its survival post-PHE. 
    
2. Temporarily extending the use of audio-only telehealth services and evaluating their impact. The OIG recognized that many Medicare beneficiaries prefer audio-only, or face barriers to accessing audio-video telehealth services, and the importance of telehealth remaining accessible to its users. 
    
3. Requiring a modifier to identify all audio-only telehealth services provided in Medicare. The OIG noted the difficulty of assessing the use of audio-only services, as well as its impact on access, quality of care, equity, and program integrity. 
    
4. Using telehealth to advance health care equity. The OIG recognized that telehealth can be a valuable tool for increasing access to care, especially for beneficiaries located in medically underserved areas or who face barriers to accessing in-person care.

CMS agreed to follow up on the high-risk providers identified in the OIG report, but did not explicitly indicate whether it agreed or would take specific actions to implement the other recommendations, including those in the OIG’s companion report. 

Primary Takeaways 

These latest OIG reports suggest that the agency recognizes the value of telehealth and encourages its continued use following the end of the PHE to help ensure continued beneficiary access to care. While Congress has extended the waivers that have led to telehealth expansion during the pandemic (e.g., by permitting beneficiaries to access telehealth services from their homes) until five months after the PHE ends, to ensure continued access beyond the end of the five-month transition period, the OIG is urging CMS to take further actions to continue the expanded access to telehealth services. With the anticipated continued growth in the use of telehealth services, including by Medicare beneficiaries, and the ongoing enforcement actions against fraudulent telehealth practices, practitioners should carefully review their billing practices in light of the additional guidance in the OIG’s reports. 

If you have any questions about the OIG’s reports or need assistance with a telehealth matter, please contact Jill Steinberg, Hillary Stemple, Fernanda Sanchez Jara, or the ArentFox Schiff attorney who usually handles your matters.