The Dos and Don'ts of Telehealth Billing Compliance

Before COVID-19, telehealth was not widely used in the rehab therapy community. But pandemic or no pandemic, rehab therapy telehealth offers many benefits:

• Patients living in underserved areas can obtain critical rehabilitation and habilitation services.
• Patients can receive therapy instruction in their home setting between appointments, thus improving skill carryover.
• Patients who cannot come to the clinic (perhaps due to transportation difficulties, lack of childcare, or health issues impacting travel) can still receive services.  

And even though telehealth was far from ubiquitous in the pre-pandemic rehab space, it was gathering steam—slowly. Some states—such as Louisiana and Ohio—had already authorized telehealth as a mode of service delivery for physical therapists. A few state Medicaid programs, such as Minnesota, reimbursed for OT and SLP telehealth services. Of course, Medicare did not authorize rehabilitation providers to deliver services virtually—and even states and payers who did allow rehab therapy telehealth often imposed limitations. For example, many required:

• the therapist to be licensed in the state where the patient was physically located,
• an initial face-to-face encounter prior to telehealth service delivery, and
• use of a clinic or facility as the telehealth site.

Then, the sudden declaration of a public health emergency made many of those telehealth barriers disappear. Nearly all states have issued executive orders (EOs) broadly authorizing telehealth services. More importantly, many EOs not only authorized telehealth, but also mandated insurance coverage. Pursuant to its 1135 waiver authority, even CMS eventually authorized PT, OT, and SLPs to provide services to Medicare beneficiaries via a number of virtual methods, including telehealth visits, virtual check-ins, and e-visits.  

The expansion of telerehab opportunities occurred via a patchwork of temporary changes to billing policies, technology requirements, and legal obligations. To facilitate use of telehealth and immediately reduce the risk of infection, for example, the government promised not to penalize providers for waiving co-pays—something that is generally viewed as an unlawful kickback. New billing codes, place of service codes, and modifiers were introduced to ensure providers were able to receive payment for telehealth services rendered. And, when the public health emergency is over, we’ll likely see even more changes in the telehealth arena. With so much rule variation and complexity, providers must be extra vigilant to avoid billing and compliance errors that may lead to serious consequences—even during a time marked by so much regulatory relaxation.

There’s a good chance that telehealth—in some capacity—is here to stay for PTs, OTs, and SLPs. So, now is the time for us to prove the unique value we provide using telehealth. We must show that we can use this means of treatment delivery to improve the lives of our patients. To do so, we absolutely must provide telehealth services with medical necessity and care quality in mind. We also must proactively incorporate telehealth into our compliance programs. That way, we can ensure adherence to all applicable laws, payer guidelines, and other requirements. If you don’t have a compliance program, or you’re not sure what it is, be sure to read this post on creating a compliance plan for your practice or this one outlining the steps for creating an effective compliance program.

Without further ado, here are the dos and don’ts of telehealth compliance. 

Do understand fraud and abuse laws. 

Don’t be willfully clueless.

As I mentioned previously, telehealth is a relatively new concept in the rehab world. Widespread adoption of telehealth in PT, OT, and SLP practices happened in a matter of weeks—at the onset of a national health crisis, no less. As such, there is limited guidance to answer all the billing questions that inevitably come with a new treatment method. To complicate matters, the state executive orders and federal 1135 waivers will expire at the end of the public health emergency, thus guaranteeing the rules will change yet again.  

Still, ignorance of the law is no defense. And having a solid understanding of fraudulent and abusive billing practices is crucial for any therapy provider navigating complex and ever-evolving telehealth laws. Luckily, you don’t have to obtain a law degree to understand fraud and abuse laws. This Medicare Learning Management article clearly outlines inappropriate billing practices. Here’s a quick overview:

Fraud

Fraud is knowingly submitting a false claim or knowingly making misrepresentations to obtain payment from a federal healthcare program, such as Medicare.  

Examples of fraudulent telehealth practices include:

• Billing for telehealth services not rendered (e.g., a patient doesn’t show up for a scheduled telehealth appointment and you bill for the visit anyway).
• Billing for non-covered services or services delivered by unqualified personnel.
• Providing non-medically necessary telehealth services.
• Routinely waiving copays to encourage patients to utilize your services.

Fraud Example 1: Technical Difficulties

Your patient is scheduled for a telehealth visit. The patient is able to log into the platform, but her Internet connection becomes unstable, and the screen freezes soon after the session begins. The connection drops and she emails you to communicate that she is having technical difficulties.  

The appropriate response: While you may be tempted to bill for the visit anyway, you absolutely should not do so. Document what happened in the patient’s record, and reschedule the session. For the patient’s next session, consider conducting a telephone visit or asking the patient if she would be comfortable coming into the clinic.

Fraud Example 2: The Therapy Tech

You are a licensed therapist who owns a small practice. You wonder if you can schedule a technician to provide telehealth services to your patients, and then bill the services under your NPI. You will be in the office suite to supervise the session.

The appropriate response: Health insurance payers—especially federal payers—do not reimburse for the services of an unlicensed technician. Submitting a claim with your NPI for the services of the technician constitutes billing for non-covered services. Instead, you should deliver the telehealth services yourself and leverage your technicians to assist with educating patients on the non-reimbursable aspects of telehealth (e.g., walking patients through the process of logging into the platform).

Abuse

Abuse involves receiving payment for unnecessary items or services, and it does not require intent to deceive or misrepresent. In other words, even if you didn’t mean to do it, you’re still on the hook for any legal repercussions. Abusive or wasteful billing practices those that are inefficient, excessive, not medically necessary, or do not meet professionally recognized standards of care. Examples of abusive billing practices include:

• Upcoding—such as billing for a code that pays more even though the services were not delivered—in order to seek high reimbursement.
• Billing for services that were not medically necessary.

Abuse Example: The Technology-Resistant Patient

Your patient agrees to try telehealth as an alternative to in-person visits. During the first session, he struggles to hear your instructions and reports that his vision affects his ability to see the computer screen. Still, he says he’s willing to continue trying telehealth. Alternatively, he says he can come into the clinic for an in-person visit.

The appropriate response: Based on the patient’s difficulties with hearing and vision, telehealth therapy services will most likely not benefit him. Billing for these services could be considered wasteful. Switch to in-person visits to ensure the patient will benefit from your instruction and other intervention strategies.

Do waive patient financial responsibility during the public health emergency, if you prefer.  

Don’t offer free gifts and giveaways for patients who schedule a telehealth visit with your practice.

Rewards, incentives, discounts, and giveaways are common marketing tactics for attracting new customers. However, in the complex world of healthcare reimbursement, these tactics can be construed as unlawful kickbacks. Generally, you should never offer any incentive that may encourage patients to seek your therapy services. Instead, patients should seek and receive your services because the services are medically necessary.

On March 17, the Department of Health and Human Services Office of Inspector General (OIG) announced it would not sanction providers who waive co-pays and other patient cost-sharing obligations for telehealth services during the public health emergency. The OIG wants to encourage patients to use telehealth so they can receive necessary medical care while simultaneously reducing their risk of exposure to the virus. Allowing providers to waive out-of-pocket patient expenses is one way the OIG can facilitate telehealth utilization.

Once the public health emergency is over, however, the OIG’s policy will expire. When that happens, routinely waiving copays and deductibles will once again implicate unlawful kick-backs, and you should avoid doing so. If your patient cannot pay his or her portion for the telehealth services, then implement a policy and process for financial hardship. For more information on copay collection and waivers, check out this blog post.  

Furthermore, refrain from giving away high-ticket prizes like laptops or iPads to encourage patients to sign up for telehealth. In fact, don’t supply vouchers, cash prizes, discounts, t-shirts, or any object of value that may be perceived to induce your patients to seek your services. For more information about the federal Anti-Kickback Statute and the many ways it can get you into trouble, refer to this resource on the OIG’s website.

Do train your staff on telehealth billing requirements.  

Don’t hope they will learn complicated telehealth billing processes by osmosis.

Healthcare billing is very complicated. Telehealth billing is very, very complicated. Many of the billing rules for telehealth are brand-new to therapy providers. And those rules are evolving on a near-weekly basis. Plus, rules are not consistent among all payers. To top it all off, Medicare has different types of virtual visits, each with its own billing codes and requirements. Failure to observe those requirements could negatively impact your practice in a big way, because believe it or not, telehealth billing errors can lead to overpayments—and overpayments can lead to fraud enforcement at both the state and federal level.  

So, train your staff on the rules. Don’t make them guess, because if you do, you can pretty much guarantee billing errors. Those errors ultimately hurt the therapy profession and our patients, so do your part and take the extra time necessary to bill correctly.  

Here are some resources you can use to learn about, and train your staff on, accurate telehealth billing:

• The Medicare fact sheet about virtual visits
• This FAQ on Medicare e-visits
• The Medicare Learning Network video on Medicare coverage of virtual services
• WebPT’s webinar on tackling telehealth
• WebPT’s webinar on telehealth updates
• WebPT’s telehealth billing quick guide
• WebPT’s guide to COVID-19 and telehealth
• APTA’s telehealth resources
• AOTA’s telehealth resources
• ASHA’s telehealth resources

Do remain adaptable and receptive to change.  

Don’t assume current telehealth provisions will remain intact.

Before the pandemic, rehab therapy telehealth was like dial-up Internet service: not easy to use or efficient. Most payers, including Medicare, didn't reimburse for it. Often, it was only available in rural areas. Usually, an in-person visit was required to initiate it. Strangely, the originating site (where the patient was located) had to be another clinic—rather than the patient’s home. And it usually involved a live video/audio stream and excluded telephone-only communications.  

The public health emergency miracuously lifted most barriers to telehealth delivery and reimbursement in a matter of weeks. But please remember that the orders creating those paths are set to expire at the end of the public health emergency. Therapists will then have to forge the traditional paths of legislative change in order to make telehealth a permanent part of the rehab therapy repertoire. And those paths are long and fraught with hurdles, which means our ability to provide telehealth may come to a halt—at least temporarily.

Here in Arizona, for example, OTs, PTs, SLPs, and ATCs were working together before the pandemic to pass legislation authorizing us as telehealth providers. Even if that law had passed, it would not have promised insurance reimbursement of telehealth services, so more advocacy efforts were needed. The bill was paused in the Senate when the pandemic descended, so the legislature could shift focus to the budget. One week later, the governor issued an order that not only granted therapists the ability to provide telehealth, but also guaranteed they would receive reimbursement for it! But that order—like many state orders—will expire. Telehealth lobbying efforts will almost certainly resume, but in the meantime, therapists will not be able to provide telehealth.

So, stay abreast of your state’s executive orders. Check in often with your national professional organization for updates. If you haven’t already, join your state professional association and consider supporting its telehealth advocacy efforts. And stay flexible, adaptive, and open to change.

One last “do” before I sign off: Proactively seek the counsel of an experienced healthcare lawyer if you have more questions about telehealth billing compliance. Don’t rely on this blog post as legal advice. While I am a lawyer, I am not your lawyer. This blog post does not create a legal engagement, and it is only intended to educate you about telehealth billing compliance.

Have telehealth compliance questions? Leave them in the comment section below, and the WebPT team will do their best to supply an answer.