It’s Time to Check Up on Your Telehealth Program
Guidance regarding fraud in telemedicine and nondiscrimination in telehealth.
By Paul J. Welk, JD, PT
In response to the COVID-19 pandemic, many physical therapy practices quickly implemented, or otherwise accelerated, the use of telehealth as a method of providing patient care services and surviving a very uncertain business environment. With a very short timeline to implement a telehealth program, many practices may not have had adequate time and resources to consider appropriate policies and procedures governing the provision of telehealth services. Recently, a number of federal agencies have published guidance relevant to the provision of telehealth. This guidance provides a good opportunity for practices to either develop, or otherwise reevaluate, their telehealth policies, procedures, and processes from a legal and compliance perspective. This article will highlight some important issues addressed in this recent guidance.
On July 20, 2022, the United States Department of Justice (USDOJ) issued a press release announcing criminal charges against 36 defendants for more than $1.2 billion in alleged fraudulent telemedicine schemes. These charges primarily addressed alleged schemes to pay illegal kickbacks in exchange for referrals of patients by medical providers working with fraudulent telemedicine and technology companies. In part, the investigation targeted referrals for expensive and medically unnecessary durable medical equipment. The press release also highlighted general concerns over the potential use of telemedicine as a platform to commit fraud.1 While not specifically addressing physical therapy, it is easy to imagine arrangements in the physical therapy setting that have characteristics similar to the concerns described in the press release.
Also on July 20, 2022, based upon the issues and concerns identified in the USDOJ enforcement action the Department of Health and Human Services Office of Inspector General (OIG) issued a special fraud alert discussing cautions practitioners should take when entering into arrangements with telemedicine companies. The special fraud alert identifies common components of arrangements concerning to the OIG. These concerning components include the use of kickbacks to recruit and compensate practitioners to facilitate fraudulent schemes, such as through a payment per consult or assessment to the referring practitioner, and circumstances where the practitioner does not appropriately consider medical necessity or perform an appropriate assessment of the patient and their medical history. Other suspect characteristics of these arrangements include a lack of expectation for the practitioner to follow up with the patient and the provision of items and services exclusively to federal health care program beneficiaries. The OIG’s special fraud alert also provides that other persons could potentially face liability for conduct contributing to violations of law, including other providers that bill for items or services based upon a fraudulent referral. As previously noted, it is not difficult to see the applicability of the OIG’s concerns to potential arrangements involving physical therapy. It is important to note that the OIG does specifically state in its fraud alert that it is aware of many appropriately used telehealth services to provide medically necessary care to patients, while also encouraging practitioners to consider suspect characteristics in any potential arrangement with a telemedicine company.2
NONDISCRIMINATION IN TELEHEALTH GUIDANCE
In addition to publications related to fraud and abuse, on July 29, 2022, the U.S. Department of Health and Human Services Office for Civil Rights and the U.S. Department of Justice Civil Rights Division issued joint guidance on nondiscrimination in telehealth. This guidance reviews various federal laws that require providers to make telehealth accessible to individuals with disabilities and limited English-proficient persons. The publication is very helpful in that it provides practitioners with numerous resources to detailed federal guidance on relevant issues, including guidance on the use of telehealth, audio telehealth, and patient access. Of particular interest to private practice physical therapists, the guidance contains two examples that expressly reference physical therapy. Specifically, the guidance states that for people who are deaf or hard of hearing:
A physical therapy practice that uses telehealth to provide remote training sessions to patients may need to provide a sign language interpreter who is qualified to interpret physical therapy instructions and techniques, including using any necessary specialized vocabulary, for a patient who is deaf. When an interpreter is necessary, the provider will need to make sure that their telehealth platform allows the interpreter to join the session. The provider may not require patients to bring their own interpreter.
The guidance further provides the following example for people who are blind or have visual disabilities:
A sports medicine practice that uses videos to show patients how to do physical therapy exercises may need to make sure that the videos have audio descriptions for patients with visual disabilities.
If a health care provider fails to take appropriate measures to ensure the accessibility of care provided through telehealth, it can be subject to claims of unlawful discrimination.3
These recent publications by the Department of Health and Human Services and the Department of Justice provide an excellent opportunity for physical therapy private practices to review their policies, procedures, and processes as well as their current telehealth platforms to ensure that telehealth services are accessible to persons with disabilities and limited English-proficient persons. In addition, practices should also assess their telehealth programs for suspect characteristics as highlighted in the OIG’s special fraud alert and consider other legal and regulatory issues such as state licensure laws and reimbursement for services. By performing such a review and taking necessary action based on issues identified, practices can seek to mitigate risk related to the provision of telehealth services while assuring that patients receive high quality, compliant services.
1U.S. Department of Justice. “Justice Department Charges Dozens for $1.2 Billion in Health Care Fraud.” Accessed August 12, 2022.
2Office of Inspector General. “Special Fraud Alert: OIG Alerts Practitioners To Exercise Caution When Entering Into Arrangements With Purported Telemedicine Companies.” Accessed August 12, 2022. https://oig.hhs.gov/documents/root/1045/sfa-telefraud.pdf
3U.S. Department of Health and Human Services. “Guidance on Nondiscrimination in Telehealth: Federal Protections to Ensure Accessibility to People with Disabilities and Limited English Proficient Persons.” Accessed August 12, 2022. https://www.ada.gov/telehealth_guidance.pdf
Paul J. Welk, PT, JD, is an APTA Private Practice member and an attorney with Tucker Arensberg, P.C., where he frequently advises physical therapy private practices in the areas of corporate and healthcare law. Questions and comments can be directed to firstname.lastname@example.org or (412) 594-5536.