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OIG Opens Fire on Telehealth Claims during COVID

They’re here….

Steven Spielberg actually directed Poltergeist, crew member confirms | The  Independent | The Independent

The audits of telehealth during COVID. OIG is conducting, at least, seven (7) nationwide audits of providers specific to telemedicine. These audits will review remote patient monitoring, virtual check-ins, and e-visits. In 2018, OIG issued a report regarding a 31% error rate of claims for telehealth – and that report was prior to the explosion of telemedicine in 2020 due to COVID. All providers who have billed telehealth during the public health emergency (“PHE”) should be prepared to undergo audits of those claims.

The following audit projects are as follows:

  • Audits of behavioral health care telehealth in Medicaid managed care;
  • Audits of Medicare Part B telehealth services during PHE;
  • Audits of home health services provided as telehealth during the PHE;
  • Audits of home health agencies’ challenges and strategies in responding to the PHE;
  • Medicare telehealth services during PHE: Program Integrity Risks;
  • Audits of telehealth services in Medicare Parts B (non-institutional services) and C (managed care) during the COVID-19 pandemic;
  • Medicaid: Telehealth expansion during PHE.

Recently added to the “chopping block” of audits via OIG include Medicare payments for clinical diagnostic laboratory tests in 2020. OIG will also audit for accuracy of place-of-service codes on claims for Medicare Part B physician services when beneficiaries are inpatients under Part A. As it always seems is the case, home health and behavioral health care are big, red targets for all audits. Over the pandemic, telehealth became the “new norm.” Audits on telehealth will be forthcoming. Specifically in behavioral health, OIG announced that it will audit Medicaid applied behavior analysis for children diagnosed with autism.

On another note, I recently had a client undergo a meaningful use audit. Everyone knows the government provides incentives for using electronic records. In order to qualify for a meaningful use incentive you must meet 9 criteria. If you fail one criterion, you owe the money back. One of the biggest issue physicians have faced in an audit is demonstrating the “yes/no” requirements that call for attestation proving the security risk analysis was successfully met. In this particular case, opposing counsel was a GA state AG. The attorney told me that he had zero authority to negotiate the penalty amount. It was the first time another lawyer told me that the penalty was basically a “strict liability” issue, and since the funds were federal, the State of GA had no authority to reduce or remove the penalty. But there is an appeal process. It made no sense. In this case, the doctor didn’t want to pursue litigation. So, reluctantly, we paid. I am wondering if any of my readers have encountered this issue of no negotiations for meaningful use penalties.

NC State Law May Violate Federal Medicaid Law

The U.S. Supreme Court heard oral arguments January 8, 2013, as to whether the federal Medicaid Act trumps North Carolina‘s Medicaid seizure law.  As of now, when a plaintiff wins a medical malpractice lawsuit, the State is authorized to recoup up to 1/3 of any jury award or settlement or the actual amount of Medicaid payments (whichever is less), regardless of how much of the award was designated for medical expenses.

The underlying case is Delia v. E.M.A.

The Facts: Emily M. Armstrong was born on February 25, 2000. She was seriously injured during her delivery resulting in mental retardation, cerebral palsy and several other medical conditions. Two months after Emily was born, Emily’s parents, Sandra and William Earl Armstrong applied for Medicaid. From Emily’s birth until her untimely death, Medicaid paid over $1.9 million in medical expenses on Emily’s behalf.  Emily’s parents and guardian sued the physicians who delivered her and settled for $2.8 million.  DHHS immediately placed a lien on the settlement money.

The Legal Issue: Whether N.C. Gen. Stat. § 108A-57 is preempted by the Medicaid Act’s anti-lien provision, 42 U.S.C. §§ 1396a(a)(25), 1396k(a),

The Legal Issue in English:  The Federal law prohibits recovery from any payments not made for past medical expenses. In other words, if the jury or settlement does not specify which portion of the settlement or award was reimbursement of medical expenses, then Medicaid cannot recoup any money.  In North Carolina a minor child is not allowed to recover for past medical expenses.  Therefore, in Emily’s case, none of the monies was designated as past medical expenses. Thus….Medicaid (under the federal law) cannot be reimbursed for the expenses paid out for  Emily. Which law wins? Federal or State?

Once the case was settled, the NC Court ordered that $933,333 of the settlement must be paid to the state.

Emily’s parents sued NC DHHS in the U.S. District Court for the Western District of North Carolina, saying that federal law prevents the State from any reimbursement.

The North Carolina U.S. District Court for the Western District of North Carolina granted summary judgment in favor of the State, saying the State law trumps federal law.  Emily’s parents appealed.

The United States Court of Appeals for the Fourth Circuit vacated the lower court’s decision. However, the appellate court held that DHHS had the right to recoup a portion of Emily’s settlement, but it remanded the case because the State failed to provide an itemization of how much of the settlement was designated as past medical expenses.

The Supreme Court of the United States granted the State’s petition for certiorari.  John Maddrey argued on behalf of the State. Christopher Browning, Jr., argued on behalf of Emily’s parents.

Now we wait….Does the North Carolina law allowing the State to take 1/3 of a settlement, if the money was not designated as past medical expenses, violate federal Medicaid law disallowing the states from taking money from a settlement unless the settlement money was designated  as past medical expenses.

The question that has to be answered, not saying that it can be answered, is: When the insurance company for the physicians settled with Emily’s parents, were they paying for past medical expenses? Or were they paying for Emily’s parents’ loss of child, mental anguish and pain and suffering?

Guess we need another trial to determine that issue.