By Mathew J. Levy, Esq. & Stacey Lipitz Marder, Esq., Weiss Zarett Brofman Sonnenklar & Levy, P.C.

In response to the increased trend of practitioners providing telehealth services in their practices, the Department of Health & Human Services (HHS)’ Office of Inspector General (OIG) has recently announced that it will be adding a review of Medicare and Medicaid telehealth payments to its 2017 Work Plan. Accordingly, providers who render telehealth, telemedicine or remote patient monitoring services and subsequently bill the Medicare and Medicaid program may be subject to an audit involving a review of claims billed to confirm that payment was appropriately made.

Specifically, with respect to Medicare payments, the OIG is looking to see that the patient was at an eligible originating site (i.e. the provider’s office or a specified medical facility) and that the statutory conditions for coverage were met (i.e. the patient is located in a qualifying rural area and communication is through an interactive audio and video telecommunications system that permits real-time communication).

With respect to Medicaid, the OIG has noted that Medicaid pays for telemedicine, telehealth, and telemonitoring services delivered through a range of interactive video, audio or data transmission (telecommunications). OIG will determine whether selected States’ payments for Medicaid services delivered using telecommunication systems were allowable in accordance with Medicaid requirements. New York law currently requires commercial insurers and the Medicaid program to provide reimbursement for services delivered via telehealth if those services would have been covered if delivered in person. Telehealth shall not include delivery of health care services by means of audio-only telephone communication, facsimile machines, or electronic messaging alone, though use of these technologies is not precluded if used in conjunction with telemedicine, store and forward technology or remote patient monitoring.

While telehealth certainly offers a benefit with respect to improving the delivery of health care and is becoming an increasingly popular alternative to traditional medicine, it is imperative that providers review the applicable rules and regulations governing the payment of telehealth services from Medicare and Medicaid in order to ensure compliance with coverage, coding an documentation guidelines; including but not limited to the Local Coverage Determination and the Medicare Guidelines. Furthermore, providers need to assess the legal challenges presented when providing telehealth services, including but not limited to issues involving standard of care/liability, licensure, and HIPAA, in order to further minimize exposure.