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. 

References:

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

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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 pwelk@tuckerlaw.com or (412) 594-5536.