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Addressing Heightened Risk of Fraud, Waste, and Abuse From Telehealth Expansion

By Gary Call, MD

It took a global pandemic to get here, but telehealth has finally taken off after years of debate surrounding the benefits it might bring. Perhaps it was worth the wait, as it seems that telehealth couldn’t have come at a better time for the health care industry. However, like anything, we find ourselves asking, “How will the good outweigh the bad?”

According to the Physicians Foundation’s 2018 Survey of America’s Physicians, telemedicine use among providers has increased from 18% in 2018 to 48% in 2020, and for good reason. For consumers, particularly those who are immunocompromised or living with chronic conditions and vulnerable groups living in resource-scarce communities, telehealth offers an accessible, safe option to receive care at home when going to the doctor is undesired or not feasible. For providers, being able to remotely triage and monitor patients with COVID-19 symptoms eliminates the risk of staff or other patients contracting the virus, while also maximizing resources during a high-demand period for health care.

Rapid technological innovation in response to COVID-19 as well as regulatory adaptions at the federal level have played a big role in advancing telehealth this year. The federal government expanded telehealth coverage for Medicare beneficiaries to help mitigate coronavirus spread and protect vulnerable consumers. It also relaxed multiple regulatory guidelines to help facilitate access to these services and build capacity.

To speed adoption, these changes involved the elimination or scaling back of regulations put in place to ensure program integrity and alleviate fraud, waste, and abuse (FWA). While the relaxation of these guidelines has enabled rapid rollout, it has also led to growing concern about a potentially heightened risk of telehealth-related FWA.

The Rapid Change in Telehealth Rules Driven by COVID-19
The drastic advancement of telehealth and, specifically, the easing of regulations to accommodate it, calls into question the long-term sustainability of the current landscape. The Centers for Medicare & Medicaid Services (CMS) recently published a report explaining the long list of temporary flexibilities that have been put in place to support the ongoing fight against COVID-19. A few of the noteworthy waivers include the following:

• Potentially waiving penalties for HIPAA violations to encourage the use of teleconferencing technologies—a move that raises concerns for patient privacy and safety.
• Physicians may reduce or waive patient deductibles and copayments for telehealth visits, an act that could be considered a kickback under normal circumstances.
• If certain conditions are met, out-of-state practitioners don’t have to be licensed in the state in which they are providing telehealth services, which has some legal experts sounding alarms on potential liability and malpractice implications.

While temporary, there is a good chance some of these flexibilities—and the risks they expose—could extend past the current crisis. History has shown that fraudsters thrive during times of crisis. In fact, the Office of Inspector General has alerted the public about several COVID-19–related fraud schemes that have taken place, including unsolicited text messages, door-to-door visits from scammers offering fake COVID-19 tests, and telemarketing calls.

As always in times of crisis, telehealth is particularly vulnerable to fraud. For example, a 2018 Office of Inspector General report found that more than 30% of CMS-paid telehealth claims didn’t meet Medicare requirements, equaling $3.7 million in overpayments, during a 2014–2015 audit period. Last September, federal law enforcement charged 35 defendants from dozens of telemedicine and cancer genetic testing labs for involvement in a $2.1 billion Medicare fraud scheme. The list goes on, with many past and present fraud schemes and instances of intentional improper billing staying under the radar.

While outright fraud will be a problem, other significant threats are overpayments from coding and billing errors. The explosive growth of telehealth has many new providers in the mix who may be inexperienced in proper coding and billing for telehealth services.

In addition, providers are navigating unprecedented circumstances, with new information and guidelines being released and updated daily. As if the new ICD-10, CPT, and HCPCS codes for COVID-19 weren’t enough to digest, CMS also introduced 80 new billing codes for telehealth services alone. Rigorous and comprehensive program integrity efforts are necessary to ensure that telehealth claims are paid appropriately and that consumers are getting value for what is becoming a much bigger piece of the health care finance pie.

Taking Steps to Ensure the Value of Telehealth Outweighs the Risks
With a historic amount of change being enacted at such a fast pace, the health care system is stressed. In this environment, coding and billing inaccuracies are inevitable, and gaps remain where fraudsters see opportunities. As a result, health care organizations must adopt a measured and flexible approach in reinstating program integrity measures during and after the pandemic. Additionally, state and federal regulators, policymakers, and insurers are urged to thoughtfully restart and enhance oversight efforts to address incidents of FWA.

Planning for the new normal won’t be easy, but restarting and enhancing FWA efforts will be one of the most important decisions made post COVID-19. For those regulators that changed, limited, or stopped FWA activities, a coordinated, strategic restart is crucial. One recommendation is that regulators and insurers look closely at early decisions being made during periods of reopening and resume normal FWA activities in areas with low numbers of COVID-19 patients and for providers who have been minimally impacted by the pandemic.

No matter the strategy, remedying regulatory adaptions will be crucial in diminishing the many risks that have emerged as telehealth expansion has taken precedent over the vulnerabilities they present.

Given its astonishing climb in popularity, it’s safe to assume that telehealth, in general, is here to stay. However, looking ahead beyond the current crisis, there is still much change ahead. Navigating this new, evolving health care landscape might require some reverse engineering from state and federal regulators, policymakers, and insurers, as COVID-19 has forced a historically rapid transformation of many different systems and the policies that govern them. This will be pivotal to utilize the full value of telehealth while mitigating its inherent risks to the health and safety of consumers and the financial integrity of the health care system.

— Gary Call, MD, is chief medical officer at HMS.