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Telehealth In A Post-Pandemic World – Healthcare


As we enter the third year of the pandemic, life with COVID-19
has become the new “normal” for many Americans. While
debate can be had about when a pandemic ends or becomes endemic,
there is no dispute that more and more Americans feel COVID-19 is
no longer a national crisis1 and that the nation
currently faces larger problems.2 This shift in public
opinion has implications for the declaration of a Public Health
Emergency by the Department of Health and Human Services (HHS),
upon which many of the telehealth expansions of the pandemic are
dependent. While the Public Health Emergency is likely to continue
for the remainder of 2022,3 its eventual end will
necessitate an examination of the utility of the government’s
telehealth waivers and their impact on the delivery of health care.
Early pandemic data suggests that telehealth’s rapid adoption
increased the accessibility of health services-particularly for
susceptible population groups-but that inequities exist in its
delivery. Further, concern regarding the potential for fraud and
abuse in the delivery of telehealth services remains a focus of the
federal government and its enforcers. Finally, while permanent
federal legislation expanding the scope of telehealth services and
reimbursement remains to be seen, a large bipartisan push to expand
the services permanently appears likely in late 2023 or early
2024.

Explosive Growth

At the beginning of the pandemic, stay-at-home orders and social
distancing required that the delivery of health care be changed
overnight. With the declaration of a Public Health Emergency and
passage of the Coronavirus Preparedness and Response Supplemental
Appropriations Act4 and the Coronavirus Aid, Relief and
Economic Security Act,5 the Centers for Medicare &
Medicaid Services (CMS) was granted the ability to
waive6 certain requirements for telehealth services.
Before the pandemic, telemedicine7 was limited to
certain services which could only be provided by specific
practitioners8 to rural patients at “originating
sites.”9 These requirements were quickly waived to
allow for the provision of telemedicine services to urban and
suburban communities, including telemedicine by practitioners
previously barred from providing telemedicine services.
10 Licensing requirements for out-of-state practitioners
were also waived
11 and certain telehealth services
were allowed to be provided via “audio-only,” including
office visits and behavioral health services.12 This
superseded the requirement that telehealth services be furnished
via audio and video equipment, permitting two-way,
real-time interactive communication between the
patient and practitioner. 13

Following these actions, the use of telehealth skyrocketed. From
the period of March 1, 2020 to February 28, 2021, approximately two
in five Medicare beneficiaries utilized telehealth14
services, a rate 88 times that of the year prior to the
pandemic.15 The use of telehealth remained heightened
into early 2021, when in-person office visits had resumed for most
providers.16 During this first year, Medicare
beneficiaries received over 54.5 million office visits via
telehealth and 34 million instances of virtual care services.17 Telehealth was frequently used among beneficiaries for
behavioral health services and nursing home visits, totaling 14.1
million and 3.3 million services,
respectively.18

Another study utilizing the Census Bureau’s Household Pulse
Survey from April to October 2021 found a 23.1% use of telehealth
services, with nearly one in four adults polled reporting an
appointment with a healthcare professional by video or phone in the
previous four weeks.19 The highest rates of telehealth
utilization were among those with Medicaid (29.3%) and Medicare
(27.4%), Black individuals (26.8%), and those earning less than
$25,000 (26.7%).20 However, video telehealth services
were most likely to be utilized by young adults, those earning at
least $100,000 a year, those with private health insurance and
White individuals.21 The study found that video services
required a “more complex setup, video-enabled devices, and
broadband internet access,” which could present barriers for
older adults, lower income households and those with limited
English proficiency.22 There was also a strong
correlation between video telehealth visits and one’s
education.23

This data shows that the adoption of telehealth has been
consistent across demographics and has been particularly beneficial
at reaching at-risk population groups. Further, telehealth can be
utilized to address the nation’s mental health crisis24 through increased accessibility to behavioral and
mental health services with reduced stigmatization. However, work
remains to be done concerning an equitable distribution of video
telehealth services among population groups.

Efforts to Sustain Expansion

With Medicare’s telehealth waivers dependent upon the
existence of a Public Health Emergency, legislative efforts are
necessary to ensure the benefits of telehealth are maintained.
Congress appears to be taking a measured approach to any permanent
changes to telehealth flexibilities, and while no laws solidifying
the expansions have been passed, measures have been taken to ensure
providers do not experience a “telehealth cliff.”

Recently, Congress passed the “Consolidated Appropriations
Act of 2022,”25 which included “Telehealth
Flexibility Extensions” to continue the telehealth extensions
of the pandemic for a period of 151 days past the end of the Public
Health Emergency. These extensions include flexibilities removing
geographic requirements for the delivery of telehealth, continuing
the expansion of practitioners eligible to provide telehealth
services, extending telehealth services for federally qualified
health centers and rural health clinics not located at the same
location as the beneficiary, removing in-person requirements for
mental health services, allowing audio-only telehealth services and
the use of telehealth to conduct face-to-face encounter for
recertification of hospice care.26

The legislation further directed the Medicare Payment Advisory
Commission to “conduct a study on the expansions of telehealth
service . . . as a result of the COVID-19 public health
emergency,” with the report due to Congress no later than June
15, 2023.27 The Secretary of HHS was also directed to
begin publishing data on a quarterly basis regarding telemedicine
utilization, and the Office of the Inspector General (OIG) was
directed to also submit a report to Congress by June 15, 2023, on
program integrity risks associated with telehealth
services.28 These actions evidence Congress’ intent
to provide a permanent, workable solution to telehealth expansion
prior to the removal of the waivers at the end of the Public Health
Emergency, though this could be delayed until after the summer of
2023.

This legislation follows support by 336 health care and other
interested organizations who urged Congress to extend the
telehealth waivers until 2024, after which it could take up
“permanent, evidence-based telehealth legislation” to
“effectively modernize U.S. health care delivery.”29 They cited data demonstrating overwhelming public
support for increased access to telehealth services.30
CMS itself-while unable to amend statutory telemedicine
requirements-has already broadened its telehealth coverage outside
of the waivers by expanding its definition of
“telecommunications” to include audio-only communications
technology when used for telehealth for the diagnosis, evaluation
or treatment of mental health disorders.
31 CMS has
further agreed to finalize services added to the Medicare
telehealth services list through Dec. 31, 2023, to allow for
additional time to evaluate whether such services should be added
permanently.
32

The extensions of the Consolidated Appropriations Act of 2022
along with a groundswell of support for expanded telehealth by
invested stakeholders and CMS suggest many telehealth waivers will
be made permanent in the post-pandemic world. However, these
decisions will not be made in haste, and permanent change is
unlikely until CMS and the OIG have provided comment regarding the
effect of the telehealth expansions on both the delivery of health
care and health care fraud.

Concern over Fraud and Abuse

Fraud in telehealth has garnered attention throughout the
pandemic, with telehealth flexibilities increasingly being
exploited in large-scale fraud schemes. In May 2021, the first
enforcement action by the Department of Justice (DOJ) specifically
relating to Medicare’s telehealth expansions was aimed at
telemedicine executives, physicians, marketers and medical business
owners.33 As with other recent telemedicine schemes,
providers performed a telemedicine “consultation” and
prescribed a certain service or product in exchange for an illegal
kickback.34 However, this enforcement action differed
from other recent DOJ enforcement actions in that some telemedicine
visits were billed in addition to being used to prescribe or order
unnecessary health care items and services.35

This trend continued into September 2021 when the DOJ charged
138 defendants-including 42 doctors, nurses and other licensed
medical professionals-for participation in health care fraud
schemes totaling $1.4 billion in losses, with $1.1 billion
involving telemedicine.36 Court documents show that
telemedicine executives paid practitioners to order unnecessary
durable medical equipment, genetic testing and pain medications,
often without any patient interaction or with only a brief
telephone conversation with a patient the practitioner never met.37 Again, the DOJ noted that “[i]n some instances,
medical professionals billed Medicare for sham telehealth
consultations that did not occur as
represented.”38

However, telemedicine’s use in such schemes often remains a
means to an end rather than the source of fraud itself-the
telehealth visits are frequently not billed and are used solely to
try to legitimize ordering otherwise unnecessary and expensive
medical services. This differs from individualized practitioner
fraud involving up-coding, misrepresenting telehealth services
provided and billing for telehealth services not actually
rendered.39 In an attempt to differentiate between the
two, Christi Grimm, Principal Deputy Inspector General of the OIG,
issued a statement addressing both “telefraud” and
“telehealth” schemes.40 Grimm noted the
importance of distinguishing between telefraud schemes, which
“inappropriately leverage[] the reach of telemarketing schemes
in combination with unscrupulous doctors conducting sham remote
visits,” and “the evolution of scams that may relate to
telehealth.”41 This distinction is important for
proponents of telehealth, as “telefraud schemes”
involving illegal kickbacks existed prior to the increased use of
telehealth and are unlikely to be indicative of telehealth fraud
occurring in existing practitioner-patient relationships. In order
to protect honest practitioners from involvement in such schemes,
the OIG issued a “Special Fraud Alert” describing suspect
characteristics of arrangements with telemedicine
companies.42

While the use of telehealth frequently makes headlines in fraud
cases, data concerning individualized fraud by practitioners
remains sparse. The OIG has several “Active Work Plan
Items”43 to study, address and audit the use of
telehealth during the pandemic which are expected to be issued in
2022. These studies, along with the OIG’s June 15, 2023, report
on program integrity risks associated with telehealth, will have a
heavy influence on which telehealth expansions will outlive the
Public Health Emergency.

The Post-Pandemic Future of Telehealth

The use of telehealth during the pandemic has undoubtedly
increased access to care, particularly among at-risk population
groups. Its use will continue to grow post-pandemic, and concerted
efforts will be made to ensure a more equitable distribution of
video telehealth services. Federal legislation codifying current
telehealth expansions dependent upon the Public Health Emergency
can be expected following the summer of 2023, and the Secretary of
HHS will likely continue to extend the Public Health Emergency
until this time. Finally, while telehealth’s use in
“telefraud” schemes will continue to make headlines, data
regarding individualized fraud will be used to determine what
additional safeguards are needed to prevent everyday telehealth
fraud, and many of the present-day concerns regarding telehealth
will quickly become a thing of the past.

Footnotes

1. Axios/Ipsos poll: Most Americans
say COVID is no longer a crisis
, (April 12, 2022) https://www.axios.com/2022/04/12/axios-ipsos-poll-most-americans-say-covid-is-no-longer-a-crisis.
Less than 1 in 10 Americans now consider COVID-19 a crisis, though
the vast majority still consider it a problem, albeit
manageable.

2. By a wide margin, Americans view
inflation as the top problem facing the country today
, (May
12, 2022) https://www.pewresearch.org/fact-tank/2022/05/12/by-a-wide-margin-americans-view-inflation-as-the-top-problem-facing-the-country-today/.
Only 19% of U.S. adults still view COVID-19 as a “very big
problem,” placing it behind inflation, the affordability of
health care, violent crime, gun violence, the federal budget
deficit, climate change, the quality of public K-12 schools,
illegal immigration, racism, conditions of roads, bridges, and
other infrastructure, and unemployment in the category.
Id.

3. Secretary of the Department of Health
and Human Services (“HHS”) renewed the determination of a
Public Health Emergency for an additional 90-day period on April
16, 2022. Renewal of Determination That a Public Health
Emergency Exists
, (April 16, 2022), https://aspr.hhs.gov/legal/PHE/Pages/COVID19-12Apr2022.aspx.
It has also been reported that an additional extension will be made
beyond the present mid-July deadline. US Set to Extend Covid-19
Public Health Emergency Past July
, (May 16, 2022), https://www.bloomberg.com/news/articles/2022-05-16/us-set-to-extend-covid-19-public-health-emergency-past-july
(reporting that the declaration of a PHE will be extended beyond
mid-July “according to a person familiar with the matter, who
asked not to be identified because the details aren’t
public.”).

4. H.R. 6074, 116th Cong. § 102
(2020).

5. H.R. 748, 116th Cong. § 3703
(2020).

6. See 42 U.S.C. §
1320b-5(b)(8) (giving the Secretary of HHS the authority to waive
requirements during national emergencies).

7. Telemedicine is considered a form of
telehealth. See National Survey Trends in Telehealth Use in
2021: Disparities in Utilization and Audio vs. Video Services
,
at 1-2, Office of Health Policy of Assistant Secretary for Planning
and Evaluation of DHHS, (Feb. 1, 2022), https://aspe.hhs.gov/sites/default/files/documents/
4e1853c0b4885112b2994680a58af9ed/telehealth-hps-ib.pdf

(“Telehealth is comprised of two forms: 1) two-way,
synchronous, interactive client-provider communication through
audio and video equipment (sometimes referred to as telemedicine),
and 2) asynchronous client-provider interactions using various
forms of technology (e.g., web-based client portals, e-mail
messages, text messages, mobile applications, symptom management
tracking, sensors, peripherals, client education modules, or
electronic medical record data).”).

8. U.S.C. § 1395m(m)(1); 42 U.S.C.
§ 1395u(b)(18)(C).

9. U.S.C. § 1395m(m)(4)(C).

10. Covid-19 Emergency Declaration
Blanket Waivers for Health Care Providers
, (Dec. 1, 2020), at
1, 38,
https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-waivers.pdf.
These included physical therapists, occupational therapists, speech
language pathologists, among others.

11. Id. at 2.

12. Id. at 1; Telehealth was
Critical for Providing Services to Medicare Beneficiaries During
the First Year of the COVID-19 Pandemic
, OEI-02-20-00520, at 3
(March 15, 2022), https://oig.hhs.gov/oei/reports/OEI-02-20-00520.pdf.

13. 42 U.S.C. 1395m(m)(1); 42 C.F.R.
410.78(a)(3) (“Interactive telecommunications system means
multimedia communications equipment that includes, at a minimum,
audio and video equipment permitting two-way, real-time interactive
communication between the patient and distant site physician or practitioner.”).

14. Telehealth was Critical for
Providing Services to Medicare Beneficiaries During the First Year
of the COVID-19 Pandemic
, OEI-02-20-00520, at 12 (March 15,
2022), https://oig.hhs.gov/oei/reports/OEI-02-20-00520.pdf.
For purposes of the study, the OIG included virtual care services,
or “Communication Technology-Based Services” as part of
its study. These include virtual check-ins, e-visits, remote
patient monitoring, and telephone calls with a provider to discuss
a beneficiary’s medical condition. Id.

15. Id. at 1.

16. Id. at 2. The OIG found that
Medicare beneficiaries’ use of telehealth for behavioral health
services was a larger share than that for office visits-43% versus
13%, respectively. Behavioral health services include individual
therapy, group therapy, and substance use disorder treatment, among
others. Id. at 8.

17. Id. at 8. Virtual care
services may only be provided remotely, unlike office visits which
may take place in-person.

18. Id. at 8-9.

19. National Survey Trends in
Telehealth Use in 2021: Disparities in Utilization and Audio vs.
Video Services
, at 1, 3, Office of Health Policy of Assistant
Secretary for Planning and Evaluation of DHHS (Feb. 1, 2022) https://aspe.hhs.gov/sites/default/files/documents/4e1853c0b4885112b2994680a58af9ed/telehealth-hps-ib.pdf.

20. Id. at 1.

21. Id. Video telehealth for
White individuals was 61.9%, followed by Black individuals at
53.6%, Asian at 51.3%, and Latinos at 50.7%. Of note, the lowest
utilization of telehealth amongst subgroups occurred among adults
over age 65 at 43.5% and persons without a high school diploma at
38.1%. Id.

22. Id. at 9.

23. Id. at 5.

24. See FACT SHEET: President Biden
to Announce Strategy to Address Our National Mental Health Crisis,
As Part of Unity Agenda in his Frist State of the Union
, The
White House Briefing Room, (March 1, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/03/01/fact-sheet-president-biden-to-announce-strategy-to-address-our-national-mental-health-crisis-as-part-of-unity-agenda-in-his-first-state-of-the-union/.

25. H.R. 2471, 117th Cong. §§
301-09 (2022).

26. H.R. 2471, 117th Cong. §§
301-06 (2022).

27. H.R. 2471, 117th Cong. §§
308(a)(1)-(2) (2022).

28. H.R. 2471, 117th Cong. §§
308(b)-(c) (2022). The OIG report must include
“recommendations to prevent waste, fraud, and abuse under the
Medicare program as appropriate.” Id.

29. Letter to Senators Charles Schumer
and Mitch McConnell and Representatives Nancy Pelosi and Kevin
McCarthy Re: Establishing a Pathway for Comprehensive
Telehealth Reform
, at 1-2 (January 31, 2022), https://www.americantelemed.org/wp-content/uploads/2022/01/Telehealth-Pathway-to-Reform-Letter-to-Congress-w-signers-FIN-v2.pdf

30. Id. at 2.

31. 42 C.F.R. § 410.78(a)(3);
Calendar Year (CY) 2022 Medicare Physician Fee Schedule Final
Rule
, CMS (Nov. 2, 2021), https://www.cms.gov/newsroom/fact-sheets/calendar-year-cy-2022-medicare-physician-fee-schedule-final-rule.
Notably, this definition is only applicable when the patient is not
capable of or doesn’t consent to the use of video
technology.

32. Id.

33. DOJ Announces Coordinated Law
Enforcement Action to Combat Health Care Fraud Related to
COVID-19
, (May 26, 2021), https://www.justice.gov/opa/pr/doj-announces-coordinated-law-enforcement-action-combat-health-care-fraud-related-covid-19
(“[P]ursuant to the COVID-19 emergency declaration, telehealth
regulations and rules were broadened so that Medicare beneficiaries
could receive a wider range of services from their doctors without
having to travel to a medical facility. The cases announced today
include first in the nation charges for allegedly exploiting these
expanded policies by submitting false and fraudulent claims to
Medicare for sham telemedicine encounters that did not
occur.”).

34. Id. In a Southern District
of Florida case, a Texas company allegedly exploited temporary
waivers of telehealth restrictions by offering telehealth providers
access to Medicare beneficiaries for whom they could bill for
telehealth consultation. In exchange, the providers referred the
beneficiaries to the Texas company’s laboratories for
unnecessary genetic testing.

35. See id.

36. National Health Care Fraud
Enforcement Action Results in Charges Involving over $1.4 Billion
in Alleged Losses
, (Sept. 17, 2021), https://www.justice.gov/opa/pr/national-health-care-fraud-enforcement-action-results-charges-involving-over-14-billion.

37. Id.

38. Id.

39. Fraud Emerges as Telehealth
Surges
, ABA’s White Collar Crime Committee Newsletter,
Winter/Spring 2021, at 2, https://www.americanbar.org/content/dam/aba/publications/criminaljustice/2021/telehealth_fraud.pdf.
Up-coding involves misstating the time and complexity of the
telehealth service provided in order to receive a greater
reimbursement.

40. Principal Deputy Inspector
General Grimm on Telehealth
, (Feb. 26, 2021), https://oig.hhs.gov/coronavirus/letter-grimm-02262021.asp.

41. Id.

42. Special Fraud Alert: OIG Alerts
Practitioners to Exercise Caution When Entering Into Arrangements
with Purported Telemedicine Companies
, (July 20, 2022), https://oig.hhs.gov/documents/root/1045/sfa-telefraud.pdf.
The “suspect characteristics” of fraudulent telemedicine
arrangements include the following: 1) the purported patients for
whom the practitioner orders or prescribes items or services are
identified or recruited by the telemedicine company, a
telemarketing company, sales agent, recruiter, call center, health
fair, and/or through internet, television, or social media
advertising for free or low out-of-pocket cost items or services;
2) the practitioner does not have sufficient contact with or
information from the purported patient to meaningfully assess
medical necessity; 3) the telemedicine company compensates the
practitioner based on the volume of items or services ordered or
prescribed, which may be characterized as compensation based on the
number of purported medical records reviewed; 4) the telemedicine
company only furnishes items and services to federal health care
program beneficiaries and does not accept insurance from any other
payor; 5) the telemedicine company claims to only furnish items and
services to individuals who are not federal health care program
beneficiaries but may in fact bill federal health care programs;
and 6) the telemedicine company only furnishes one product or a
single class of products (e.g., durable medical equipment, genetic
testing, diabetic supplies, or various prescription creams),
potentially restricting the practitioner’s treating options to
a predetermined course of treatment.

43. Active Work Plan Items, OIG (last
accessed June 29, 2022),
https://oig.hhs.gov/reports-and-publications/workplan/active-item-table.asp#example=ftelehealth
.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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