COVID Related Post Payment and Telehealth Issues – Mike Miscoe


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– Good day everyone, My name is Michael Miscoe with Miscoe Health Law, and I’m happy to be here this week for the Facebook live presentation hosted by Chiro Secure, and we’re gonna talk about what I would call COVID related post payment audit liability, focusing on telehealth.

But before I get into that, of course, last month we talked about telehealth and we went through the rules, and I think I didn’t even have my headset back on the desk, and those rules were changing. And of course, over the past month, the rules have been very fluid relative to telehealth, we did get some questions following the presentation, and I thought I’d like to just follow up with addressing some of those issues.

First and foremost, as cool as it sounds, there are no tele-PTE or tele therapeutic exercises or anything other than telehealth evaluation management related or counseling services. So, please do not get creative with telehealth, and be cautious.

I just hung up the phone with one of my contacts in the Blue Cross Post Payment Audit Department, and looking at their expectations relative to telehealth. Also read an OIG report relative to their analysis of telehealth in South Carolina, where they determined a 98% error rate.

So, with COVID impacting how providers practice, how much they practice, most practices are down anywhere from 50 to 70%, and because of the changing roles relative to telehealth and that providing some option to provide compensable services during this COVID thing. I fully anticipate in the wake of this, after this is all said and done and we’re back to our normal lives, which is in, hopefully, in the not too distant future, payers are gonna look at what their payment liability relative to telehealth, and I fully anticipate telehealth and COVID related post-payment auditing to kind of kick into high gear.

Now, relative to Chiropractic as we discussed last month, one of the things that has changed is that at least Medicare has concluded that telehealth is only appropriate for established patient visits, they are not allowing physicians to initiate a management of a condition via a telehealth ENM service.

So, I had thought that patients could call, you could have a tele-visit, certainly you can do that cash and of course where physical examination, personal examination is necessary, then you should schedule that patient in the office. Most States are permitting healthcare practices to operate, but they have some very ambiguous rules as to the type of a patient you can see.

Here in Pennsylvania they say no elective services in theory, you know, but they don’t define what elective services is. And the guidance that I gave is, look if a patient has an acute condition and they’re undergoing restorative management, you know, classic medically necessary care, for those of you that bill third party payers that would probably be permissible maintenance, palliative, preventive, the patients come in for their once a month treatment, those are the types of services that probably would not, unless it was a supportive care plan where the patient’s condition would regress.

That said, we talked about some telehealth opportunities, but my concern is, is that, you know, you’re gonna be submitting claims, place service to a modifier or something like 95, whatever, telling the payer it’s telehealth, which means it’s gonna be very easy for commercial payers to audit telehealth services, they’re easily identifiable. And there are a variety of codes out there, and I’m not gonna go through that review again cause we don’t have time. But you know, if you’re billing telehealth services, obviously there’s no telehealth to Medicare, but to commercial payers, work comp, auto, make sure you understand what the payer rules are.

Now, if you’re in a state where they follow Medicare, then you need to understand Medicare’s telehealth rules. And those rules are changing, they’re pretty solid now, and I reviewed the latest iteration of what Medicare is requiring, there’s a softness on the originating site, you know, where the patient can be at home rather than go to a physical telehealth location, there, I don’t see any relaxation or changes by the licensure boards, permitting you to evaluate a patient outside own state or state where you’re licensed to practice, the originating site, meaning where the patient is, defines where you have to be licensed to practice.

So, there could be some licensure related analysis by insurance companies. And then of course, looking at the type of service, insofar as, was it a service that was appropriately performed via telehealth.

Certainly where you’re following patients, providing home care instructions for patients that aren’t comfortable coming to the office to continue treatment, that raises a number of concerns, which we’ll talk about in a minute.

Definitely want to reiterate that, evaluation management, which is history examination, decision-making examinations, a little tough other than things that you can observe visually, you know, plan a care counseling is where I see the biggest telehealth opportunities, specifically related to instructions for self management, risk factor reduction, possibly for patients that have a nutritional component to their treatment plan, where obesity is a comorbid condition to their musculoskeletal problems.

That sort of work can be done telemed, you know, and certainly any telomed that you’re doing for cash is appropriate, and we talked about some of the informed consent that you might consider implementing before doing telehealth services.

From a post payment liability perspective, we’re only worried about claims that you’re submitting to third party payers of course. So, you know, you need to be very, very careful to understand what each payer’s rules are, because you cannot assume that they’re all following Medicare or that they all have the same policies, because they don’t, and it’s one of the more maddening things about this telehealth thing, everybody’s crone about telehealth, how do we do it? How do we get into it? Because you’re losing money hand over fist because your patient volumes are down.

But be very, very cautious going after that money because it’s gonna be highly audited on the backside of this COVID thing.

As I mentioned, don’t try to provide any skilled exercises, supervision of exercises via telehealth and billing, you know, physical medicine procedures, that is definitely not gonna fly, because there is no allowance for it anywhere, I haven’t seen anybody come up with that policy although I’ve been asked that question a lot. And while I think it’s a novel idea, you know, where you had a synchronous communication with a patient, and they had the capability and the materials, you know, the equipment to do exercises at home, a way to provide skilled intervention, I know no payer that is authorizing payment for a remote telehealth skilled intervention for a physical medicine procedures.

The other issue that I think we have to embrace or think about relative to COVID is that we have a couple of classes of patients, certainly patients that initiated care prior to the shutdown, which, you know, all of a sudden started limiting people’s movements, in which case, so we start a course of care maybe a week or two weeks in, and then the COVID things hits, and then the patient terminates care.

Now, the COVID thing issue and the stay-at-home orders, and all that stuff are gonna eventually be lifted. Now the patient comes back into care. And here’s my concern. Okay, the patient obviously survived for six, eight, 10, we don’t know how many weeks it’s gonna be, without care, and then all of a sudden we’re gonna resume the care plan that’s started before the stay at home order went into place. And a payer would reasonably question the necessity of the care that you’re starting back up, cause if they were okay, while they were at home, why do they need to come back now? And maybe you weren’t even doing some home intervention or home activity risk reduction guidance and home instructions, and they’re better now, they obviously didn’t need care, need, need care during the COVID scenario, and now re-instituting that care plan, I think raises some medical necessity issues, kind of like, patient runs out of visits, and then all of a sudden on January 1st when they have new visits, there’s no new injury, there’s no nothing, and all of a sudden we’re billing again, it doesn’t make any sense from a medical necessity perspective.

So, if you’re gonna bring a patient back into care after the stay-at-home order is lifted, you need to very, very carefully track in your documentation what that patient’s experience was, when they were without care, that their condition didn’t resolve, that, you know, they were, uh, in agony or whatever.

Whatever they did to try to temporarily minimize symptoms pending the ability to return to care. You cannot just pick up where you left off and say, “Uh, Joe Smith is here today, and he has complaints of,” and you do assault note from a note like two months ago, that is not gonna work for you, and it is a recipe for disaster, so be very, very cautious there.

The other thing I’m concerned about is, given the duration of the stay-at-home orders, that may limit the frequency at which patients present to the office. So, you have a patient with problems, but they are not presenting to the office on what would otherwise be considered an optimal or restorative type care schedule.

Normally that care is two to three times a week in order to justify that you have an expectation of causing significant improvement or reasonable predictable period of time. What if the patient’s coming ad hoc or once a week or once every two weeks?

Those types of visits schedules are superficially maintenance, palliative, preventive, they’re not covered, it’s one of the most difficult challenges that we have to deal with when a payer does a medical necessity audit and the visit schedules a once every plan. There’s no argument that we can submit to justify, that that is appropriate restorative care with the appropriate expectations to make the care medically necessary and covered as that term is defined by the payers.

So, be very, very cautious. You know, if a patient can’t get in on a, you know, a normal restorative care schedule, you may have to consider transitioning them to cash and hopefully picking up a plan on the backside. But, this COVID crisis, to the extent that it’s a crisis at all, it’s a certainly a crisis for your practice, is certainly gonna present some medical necessity challenge that from data analytic perspective, a lot of these cases are gonna get picked up, and it’s really unclear how payers are gonna deal with it.

In speaking with payer financial investigation provider review team today, broached this question just to see what their thoughts were, They haven’t really thought hard about it, but essentially it’s whatever cases or whatever providers, their data analytics spit up to them, they’ll look at them, and if the care looks medically unnecessary, then they’re certainly gonna audit it and try to recover the money.

So, be very, very cautious about your billing patterns during this period of uncertainty where patients are at home, they’re not presenting the care frequently, especially watch your telehealth.

And I wanna point out, the reason that the OIG audit came up with a 98% error rate was documentation, providers did not document start and stop times, they did not document with sufficient detail the counseling that was performed during the telemed encounter.

So, if you are doing those, be sure you document them exquisitely well, when it started, when it stopped, what you talked about with some degree of detail, and how it related to management of the patient’s condition so that you can justify that the work was reasonable and necessary.

That’s all we have time for today, I hope that is helpful, and we’ll see you again next month. Everybody have a great day.