Health Law Scan

Legal Insights and Perspectives for the Healthcare Industry

Perhaps signaling the increasing likelihood of a permanent telehealth solution for the Medicare program, the Office of Inspector General for the US Department of Health and Human Services (OIG) has established a “Featured Topics” resource page on its website dedicated to telehealth and OIG’s work in evaluating telehealth policies. This telehealth resource page serves as a compendium for all the reports OIG has completed or plans to undertake related to telehealth and virtual care technologies, including several audits and evaluations currently on OIG's 2022 work plan. In addition, the resource page provides a helpful overview of the manner in which telehealth fits into the larger Medicare regulatory framework.

Notably, OIG’s telehealth resource page uses relatively broad language to refer to telehealth services, describing telehealth as the “remote or virtual delivery of health care services” and being provided through “video chats, remote patient monitoring devices, and phone calls.” This is in stark contrast to the tight, exacting definition that the Centers for Medicare & Medicaid Services must use when addressing telehealth versus other communication-based technology services to avoid those other technologies being subject to the burdensome Social Security Act 1834(m) statutory barriers on telehealth coverage in the Medicare program. It is not clear whether this difference in language is by design or simply as a result of OIG’s broader focus on evaluating how the healthcare industry utilizes various healthcare technologies not only in Medicare, but also in Federal healthcare programs, including Medicaid.

Nevertheless, OIG's telehealth resource page is also notable because of the relatively positive language OIG uses to discuss this type of service modality, explaining that “the expansion of telehealth has been critical to maintaining beneficiaries’ access to care” and noting that telehealth has the potential to improve care and enhance access. Previously, OIG has been far more critical of telehealth as a care delivery modality and warned of rampant “telefraud.” Comparatively speaking, OIG's telehealth resource page is balanced, recognizing the increased access and ease of use that telehealth can provide to beneficiaries, while also noting the importance of developing effective policies and establishing oversight mechanisms to mitigate fraud and abuse concerns.

For providers and other stakeholders in the healthcare industry, the creation of OIG’s telehealth resource page should serve as a further assurance of telehealth's increasingly important role in our healthcare delivery system in the present and into the future. In addition, it is worthwhile to assess the various reports that OIG has already issued, including a report on noncompliance with Medicare telehealth requirements and an analysis on how Medicare beneficiaries used telehealth services during the pandemic, when establishing or evaluating a telehealth program or seeking to understand the applicable federal laws that apply.

While much of OIG's recent work in telehealth has focused on the regulatory flexibility provided as a result of the COVID-19 public health emergency declaration, the telehealth resource page contains reports prior to 2020 as well as new work plan items that indicate OIG's future auditing and enforcement priorities.

If you are looking for assistance in establishing a compliant telehealth program or assessing your telehealth program against existing federal and state law, contact us to discuss your telehealth goals.