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Coronavirus Update – New FAQs and Toolkits for Telehealth, Telemedicine & Medicare Provider Enrollment

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(March 27, 2020): Liles Parker published an article covering CMS’ blanket waiver of certain telehealth requirements on March 16, 2020, with an updated version posted March 17, 2020.[1] This article covers developments since March 17, 2020 related to CMS telehealth requirements and provider enrollment activities in response to the COVID-19 public health emergency, as well as the Drug Enforcement Administration’s recent waiver permitting practitioners to prescribe controlled substances via telemedicine.

We recommend providers carefully review the CMS and DEA guidance specific for each service or activity for complete details or contact a Liles Parker attorney for more information.

I.   Medicare Telehealth Waiver:

On March 17, 2020, CMS announced a waiver of certain telehealth coverage requirements so that Medicare beneficiaries can receive a wider range of services from their doctors without having to travel to a healthcare facility.[2]Since then, the agency has published toolkits for general and ESRD providers that answer a number of key questions.[3]

The initial announcement regarding the blanket waiver published March 17, 2020 included the following key takeaways:

  • Effective for services starting March 6, 2020 and for the duration of the COVID-19 Public Health Emergency, Medicare will make payment for Medicare telehealth services furnished to patients in all areas of the country in all settings.
  • During this period, Medicare will make payment for Medicare telehealth services furnished to beneficiaries in any healthcare facility and in their home.
  • The Medicare coinsurance and deductible would generally apply to these services. However, the HHS Office of Inspector General (OIG) is providing flexibility for healthcare providers to reduce or waive cost-sharing for telehealth visits paid by federal healthcare programs.
  • To the extent the 1135 waiver requires an established relationship, HHS will not conduct audits to ensure that such a prior relationship existed for claims submitted during this public health emergency.
  • HHS’ Office of Civil Rights will exercise enforcement discretion and waive penalties for HIPAA violations against health care providers that serve patients in good faith through everyday communications technologies, such as FaceTime or Skype, during the COVID-19 nationwide public health emergency.[4]

Note that the waiver does not restrict coverage to patients with coronavirus or symptoms of coronavirus. Any service that a provider can safely deliver via telehealth and is on CMS’ list of approved telehealth services[5] will be permitted under the new waiver. This waiver of Medicare program and HIPAA requirements will last for the duration of the COVID-19 public health emergency.

II.   Medicare Telehealth FAQs

CMS updated its COVID-19 FAQs after publishing the March 17, 2020 telehealth waiver notice.[6] The FAQs answer several key questions we have received from clients in the last several days, including the following:

  • Question: For purposes of the statutory requirement that a patient have a face-to-face encounter with a physician or an allowed non-physician practitioner in order to qualify for Medicare home health care, can this encounter occur via telehealth during a pandemic outbreak of an infectious disease?

Answer: The face-to-face encounter, as described at 1814(a)(2)(C) and 1835(a)(2)(A) of the Social Security Act, can be performed via telehealth in accordance with the requirements under 1834(m)(4)(C) of the Social Security Act. Under the expansion of telehealth under the 1135 waiver, beneficiaries are able to use telehealth technologies with their doctors and practitioners from home (or other originating site) for the face-to-face encounter to qualify for Medicare home health care.

  • Question: Can the distant site practitioner furnish Medicare telehealth services from their home? Or do they have to be in a medical facility?

Answer: There are no payment restrictions on distant site practitioners furnishing Medicare telehealth services from their home. Individual providers may use their MAC hotline number to verbally update their practice location over the phone and would be effective immediately so practitioners could continue providing care without a disruption.

Liles Parker recommends that if a distant site practitioner intends to provide telehealth services and does not have their home listed on the enrollment file as a practice location, he or she should call their Medicare Administrative Contractor (MAC) to add it. Please also see the additional information below on CMS provider enrollment waivers.

We note that CMS’ telehealth waiver does not relax or remove incident to supervision requirements. We recently reviewed whether a distant site practitioner (for example, a clinical psychologist), and someone under their supervision who is not enrolled in the Medicare program (for example, a licensed counselor), could collaborate via telemedicine to care for a Medicare patient. The scenario would involve the licensed counselor providing individual therapy services via telemedicine technology. The patient would be an established patient with a plan of care established by the clinical psychologist. The psychologist and licensed counselor would not be in the same location. As of the publication of this update, CMS has not relaxed or waived the supervision requirements for incident to services; therefore, this telehealth service would not be covered unless the supervising psychologist and licensed counselor are in the same location. We will continue to monitor CMS’ FAQs and other guidance for any changes.

III.   State Medical Board Telehealth and Other Waivers:

We recommend that you check with your State licensing board to verify state requirements for telemedicine if you are unfamiliar with what is permitted in your state and the State in which you wish to provide telehealth services. The Federation of State Medical Boards (FSMB) is maintaining a list of state actions that include waivers of licensure requirements, license renewal requirements, and other state medical board actions in response to the COVID-19 public health emergency.[7] Many of these waivers address physicians from out-of-state rendering telehealth and/or telemedicine services in states where they are not licensed. Keep in mind that a physician must meet the licensing requirements both in the state where he or she is licensed and in the state where the patient being seen via telemedicine is located.

Liles Parker has advised numerous clients with regard to telemedicine services and is ready to assist you in understanding both Medicare and relevant state law during this unprecedented public health emergency.

IV.   DEA Waiver to Regarding Controlled Substance Prescribing via Telemedicine

DEA is doing its part to support enhanced telemedicine services during the COVID-19 public health emergency as well. In a recently posted FAQ,[8] DEA informed the healthcare community that while a prescription for a controlled substance issued by means of the Internet (including telemedicine) must generally be predicated on an in-person medical evaluation (21 U.S.C. 829(e)), the Controlled Substances Act contains certain exceptions to this requirement. One such exception occurs when the Secretary of Health and Human Services has declared a public health emergency, as Secretary Azar did on January 31, 2020.

On March 16, 2020, the Secretary of HHS, with the concurrence of the Acting DEA Administrator, designated that the telemedicine allowance under section 802(54)(D) applies to all schedule II-V controlled substances in all areas of the United States. Accordingly, as of March 16, 2020, and continuing for as long as the Secretary’s designation of a public health emergency remains in effect, DEA-registered practitioners in all areas of the United States may issue prescriptions for all schedule II-V controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all of the following conditions are met:

  • The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice;
  • The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system; and
  • The practitioner is acting in accordance with applicable Federal and State laws.

Provided the practitioner satisfies the above requirements, the practitioner may issue the prescription using any of the methods of prescribing currently permitted, including electronically (for schedules II-V) or by calling in an emergency schedule II prescription to the pharmacy, or by calling in a schedule III-V prescription to the pharmacy.

DEA clarified that the term “practitioner” includes a physician, dentist, veterinarian, or other person licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he or she practices, to prescribe controlled substances in the course of his/her professional practice.

V.   Additional Details on Medicare Provider Enrollment Waivers:

CMS issued a blanket waiver related to provider enrollment requirements[9] on March 13, 2020. That waiver included the following, as further explained the new FAQs published by CMS as of March 22, 2020:[10]

  • For Physicians and Non-Physician Practitioners:
    • Establishes toll-free hotlines for non-certified Part B suppliers, physicians and nonphysician practitioners to enroll and receive temporary Medicare billing privileges
    • Waives the following screening requirements:
      • Application Fee – 42 C.F.R § 424.514
      • Criminal background checks associated with fingerprint-based criminal background checks – 42 C.F.R § 424.518
      • Site visits – 42 C.F.R § 424.517
      • Postpones all revalidation actions 
  • For All other providers and suppliers (including DMEPOS):
    • Expedites any pending or new applications from providers
      • All clean web applications will be processed within 7 business days and all clean paper applications in 14 business days.
    • Waives the following screening requirements for all applications received after March 1, 2020:
      • Application Fee – 42 C.F.R § 424.514
      • Criminal background checks associated with fingerprint-based criminal background checks – 42 C.F.R § 424.518
      • Site visits – 42 C.F.R § 424.517
      • Postpones all revalidation actions;

CMS’ new FAQs include a list of the toll-free hotline numbers for each Medicare Administrative Contractor where physicians and non-physician practitioners[11] can call to receive immediate, temporary billing privileges in a jurisdiction where they are not already enrolled, or to add new practice locations to an existing enrollment. Callers should be prepared to provide the Legal Name of the enrolling practitioner, National Provider Identifier (NPI), Social Security Number, a valid in-state or out-of-state license, address information and contact information (telephone number). If basic screening criteria are met, the MAC will advise the physician or non-physician practitioner during the call that provisional billing privileges have been granted and will follow-up with a letter. If you need a retroactive effective date, the MACs may backdate your provisional enrollment as far as March 1, 2020. Individuals who receive these provisional privileges will be asked to file initial enrollment applications after the public health emergency declaration is lifted.

Note that for physicians enrolling in a MAC jurisdiction where they are not currently licensed, CMS is permitting this under its waiver authority so long as the following conditions are met:

  1. The physician or non-physician practitioner must be enrolled as such in the Medicare program.
  2. The physician or non-physician practitioner must possess a valid license to practice in the State which relates to his or her Medicare enrollment.
  3. The physician or non-physician practitioner is furnishing services – whether in person or via telehealth – in a State in which the emergency is occurring in order to contribute to relief efforts in his or her professional capacity.
  4. The physician or non-physician practitioner is not affirmatively excluded from practice in the State or any other State that is part of the 1135 emergency area.

CMS’ provider enrollment waiver does not supersede State or local licensing requirements. As we mentioned above, many States are waiving out-of-state licensing requirements or streamlining their process to get a temporary license. As stated above, we recommend that you check with your State licensing board to verify state requirements both in the state where the physician or non-physician practitioner is licensed and in the State where he or she wishes to render services either in-person, or via telehealth or telemedicine.[12]

Liles Parker provides assistance to all types of providers seeking to enroll in the Medicare program.

V.   Conclusion:

Liles Parker attorneys and staff are closely monitoring HHS, CMS and CDC guidance and will update as new information becomes available. Please contact us with questions or for assistance with your response to this unprecedented National Emergency.

covid-19 public health emergencyJennifer Papapanagiotou is a Partner at Liles Parker, Attorneys & Clients at Law.  She has decades of experience representing health care providers and suppliers around the country in connection with a wide range of regulatory actions.  Questions regarding the impact of recent coronavirus guidance on your organization?  Call Jennifer for a free consultation.  She can be reached at:  1 (800) 465-1906.

[1] See the March 16, 2020 article (updated March 17, 2020) here.

[2] Medicare Telemedicine Health Care Provider Fact Sheet, dated March 17, 2020, can be found here. Frequently Asked Questions expanding on the fact sheet and giving more details on implementation can be found here.

[3] The CMS General Provider Telehealth and Telemedicine Tool Kit can be found here. The ESRD Provider Telehealth and Telemedicine Tool Kit can be found here.

[4] HHS’s Office of Civil Rights is maintaining a website with more information on this topic here.

[5] You can find CMS’ list of approved telemedicine services here.

[6] The updated FAQs from CMS last updated on March 23, 2020 can be accessed here.

[7] The FSMB list of state licensing board actions related to the COVID-19 public health emergency can be found here.

[8] DEA’s FAQ can be found here.

[9] COVID-19 Emergency Declaration Health Care Providers Fact Sheet, dated March 13, 2020, can be found here.   Provider enrollment waivers of certain requirements are outlined in the guidance.

[10] The CMS 2019-Novel Coronavirus (COVID-19) Medicare Provider Enrollment Relief Frequently Asked Questions (FAQs) can be accessed here.

[11] Other provider types will need to file an enrollment application via PECOS or a paper application with the appropriate Medicare Administrative Contractor; however, the MACs will be expediting processing of all applications as indicated in the FAQs.

[12] The Federation of State Medical Boards list of state licensing board actions related to the COVID-19 public health emergency can be found here.

Telemedicine Audits of Evaluations by Referring Physicians are Increasing

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telemedicine(February 17, 2020):  Over the last few months, we have seen a significant increase in the number of telemedicine audits and investigations by law enforcement and program integrity contractors.  Unfortunately, most of the calls we have received have been from physicians who have inadvertently become associated with a number of improper telemedicine schemes.  The purpose of this article is to discuss several of the problematic Durable Medical Equipment (DME) telemedicine business arrangements that we have seen.  This article also reviews the possible adverse ramifications that can result if a physician, nurse practitioner or physician assistant becomes involved in one of these improper billing arrangements.

I.  Historical Overview of DME Telemedicine Audits and Enforcement Efforts:

Although telehealth services have been around in one form or another for more than a century,[1] it wasn’t until 1997 that legislation was passed that would cover certain Medicare telemedicine consultations to patients living in specific rural areas.[2] These services were later implemented as part of the 2001 Physician Fee Schedule.[3]  Since that time, the scope of Medicare telehealth services covered by the government has expanded considerably.[4]  Nevertheless, a significant number of restrictions greatly limit the care that can be provided[5] via a telecommunications system, who qualifies to provide telemedicine services,[6] and where a Medicare beneficiary must be located in order for the location to qualify as an “originating site.”[7]  A more in-depth discussion of these Medicare telemedicine restrictions can be found at this linked article.[8]

Despite the fact that coding and fee schedule guidance regarding Medicare covered telemedicine services wasn’t even published until November 2001, by March 2003 the Department of Health and Human Services (HHS), Office of Inspector General (OIG) had already found it necessary to issue a Special Fraud Alert entitled “Telemarketing By Durable Medical Equipment Suppliers.”[9]  At that time, the OIG had identified a number of DME suppliers that had utilized third-party marketing companies to make unsolicited telephone calls to Medicare beneficiaries in an effort to generate referrals.  The Social Security Act, § 1834(a)(17)(A), prohibits DME suppliers from making unsolicited calls to Medicare beneficiaries regarding the furnishing of a covered item (unless one of three narrow exceptions apply[10]).  Moreover, § 1834(a)(17)(B) bars payments to a DME supplier that knowingly submits a claim that was generated as a result of a prohibited telephone solicitation.  The OIG further noted that DME suppliers cannot use third-party marketing companies as a subterfuge to get around these unsolicited telemarketing restrictions. As the Special Fraud Alert expressly notes:

“. . . a DME supplier is responsible for verifying that marketing activities performed by third parties with whom the supplier contracts or otherwise does business do not involve prohibited activity and that information purchased from such third parties was neither obtained, nor derived, from prohibited activity. If a claim for payment is submitted for items or services generated by a prohibited solicitation, both the DME supplier and the telemarketer are potentially liable for criminal, civil, and administrative penalties for causing the filing of a false claim.” (emphasis added).

Over the next seven years, further instances of improper, and often illegal conduct by third-party marketing companies continued to be identified by the government.  In January 2010, the OIG reissued its originally March 2003 Special Fraud Alert, updating the guidance to reflect additional concerns that had been noted by law enforcement.  As the OIG’s 2010 Updated Special Fraud Alert[11] states:

“OIG has also been made aware of instances when DME suppliers, notwithstanding the clear statutory prohibition, contact Medicare beneficiaries by telephone based solely on treating physicians’ preliminary written or verbal orders prescribing DME for the beneficiaries. A physician’s preliminary written or verbal order is not a substitute for the requisite written consent of a Medicare beneficiary.”

Once again, the OIG stressed that DME suppliers may only engage in telemarketing activities to Medicare beneficiaries if one of the three exceptions under Social Security Act § 1834(a)(17)(B) have been met. Moreover, the DME suppliers cannot try to go around these restrictions by using third-party marketing companies to make unsolicited telephone contacts.

II.  Current DME Telehealth / Telemedicine Fraud Enforcement Efforts:

Telemedicine audits of physician orders for DME supplies and law enforcement investigations of the business arrangements between referring physicians, telemedicine marketing companies and DME suppliers have steadily increased.  This is due in large part to the fact that there are often multiple major risk areas at play in the provision of this type of care.  Over the last year, the government has announced the investigation and indictment of multiple large DME telemedicine cases, many of which are still ongoing.  For example:

February 2020.  District of New Jersey.  In this case, the government has alleged that the owners of two telemedicine companies agreed to solicit and receive illegal kickbacks and bribes from patient recruiters, pharmacies, brace suppliers and others in exchange for the arranging for doctors to order medically unnecessary braces for Medicare beneficiaries.  To accomplish the fraud, the government alleges that the telemedicine company owners recruited and hired health care providers to order braces for Medicare beneficiaries. Federal prosecutors also allege that the telemedicine company owners paid illegal kickbacks to health care providers to order DME supplies for Medicare beneficiaries that were medically unnecessary and / or were ineligible for Medicare reimbursement.  Once the physician orders for DME supplies were obtained, the government alleges that the telemedicine company owners transferred the orders to co-conspirator DME suppliers who then submitted in excess of $56 million in false claims to the Medicare program.

September 2019.  District of New Jersey.  In this case, a New Jersey physician pleaded guilty to his role in a $13 million telemedicine health care fraud scheme.  Notably, this was one of the 24 defendants indicted in the national take-down discussed below.  In this particular case, the New Jersey physician admitted that while working for two telemedicine companies, he wrote medically unnecessary orders for orthotic braces for Medicare beneficiaries. He further admitted that he wrote the brace orders for the telemedicine companies without speaking to the patients and that he “concealed” the fraud by stating in his documentation that he had “discussions” or “conversations” with the patients.

April 2019.  Nationwide DME Telemedicine Take-Down.  Last April, the Department of Justice announced that it had brought criminal charges against 24 individuals and 130 DME companies for their alleged participation in fraud schemes involving more than $1.2 billion in losses to insurance payors.  The fraud was widespread, and more than 80 search warrants were executed in 17 Federal judicial districts.  The 24 individual defendants include CEOs and COOs of telemedicine companies, owners of DME companies and a number of licensed medical professionals As the Press Release noted:

The defendants allegedly paid doctors to prescribe DME either without any patient interaction or with only a brief telephonic conversation with patients they had never met or seen.  The proceeds of the fraudulent scheme were allegedly laundered through international shell corporations and used to purchase exotic automobiles, yachts and luxury real estate in the United States and abroad.” (emphasis added).

As a review of recent cases will show, every DME telemedicine fraud case is different. Nevertheless, there are a number of common fraud tactics that are repeatedly alleged in the cases prosecuted by the government, many of which are discussed below.

III.  The Role of Physicians, Nurse Practitioners and Physician Assistants in the DME Telehealth Fraud Cycle:

Many of the physicians, nurse practitioners and physician assistants currently undergoing a telemedicine audit or a law enforcement investigation of their telehealth evaluations first decided to dabble in the world of telemedicine as a way to supplement their income.  In the cases we have handled, these individuals have typically worked full-time as a hospitalist or in another staff capacity and have then taken a side job with a telemedicine marketing company to conduct telemedicine DME evaluations of patients.  In most instances, the evaluating physician would work as an Independent Contractor and would be paid anywhere from $30 to $50 for each telemedicine patient evaluation performed.

As a quick review of the internet will confirm, even today there are multiple employment websites listing part-time opportunities for physician telemedicine work.  At first glance, it may look like a fast and easy way to make some money. When it comes to telemedicine business arrangements, the old maxim “You are Judged by the Company You Keep,” certainly holds true.  We recommend that you exercise caution and conduct an appropriate level of due diligence before you take on this type of work.  As the case summaries above reflect, if you are drawn into an improper telemedicine business arrangement, you may face administrative, civil or even criminal sanctions.  Questions to be asked include, but are not limited to:

  • How is the telemedicine marketing company generating potential beneficiary referrals?
  • How is the telemedicine marketing company paid for its services and by whom? Is the company paid by a DME supplier?
  • Is the telemedicine marketing company also involved with the promotion of laboratory services?
  • How will you be paid for the telemedicine evaluations you will be performing?
  • Will you be billing Medicare or another responsible payor directly for your services?
  • If you won’t be billing Medicare for the telemedicine evaluation, will you be assigning your rights to bill for evaluations to the telemedicine marketing company?
  • Will you be paid by a telemedicine marketing company for each evaluation that you conduct OR only for the evaluations in which you order DME supplies?
  • What safeguards are in place to prevent third-parties from using your provider number to submit claims for services that you did not render or for supplies that you did not order?
  • Have you asked qualified health care legal counsel to review the proposed Independent Contractor agreement between you and the telemedicine marketing company?
  • If you were to decide to work with the telemedicine marketing company, how would you receive patient referrals? Will a patient desiring a telemedicine consultation contact you directly or will you be given a list of patients that need to be evaluated?
  • Have you checked with your medical malpractice carrier to verify whether they will cover your telemedicine services?
  • Where are the patients you will be evaluating located?
  • Will you be personally interacting with each patient by telephone or interactive video conferencing OR is the telemedicine marketing company asking you to conduct your evaluation based on a patient recording and / or an intake sheet completed by the marketing company?
  • Has the telemedicine marketing company asked that you complete a prepopulated “script” when issuing an order?
  • If you decide to issue an order for DME supplies after conducting a telemedicine evaluation, who decides which DME supplier will be chosen to fill the prescription?
  • Are you meeting state requirements with respect to the establishment of physician-patient relationship?
  • Where will patient records of your evaluations be stored, and will you have ready access to those records for at least seven (7) years, or if longer, the length of time required by your state’s law?
  • Will you maintain a copy of the patient records yourself?

Each of these questions should be carefully considered before deciding whether to work with a telemedicine marketing company.  To the extent that potential concerns are identified, we recommend that you work with a qualified health law attorney to determine whether an issue represents a significant professional licensure, statutory or regulatory compliance risk.  If a significant risk is identified, we recommend you discuss what steps, if any, can be taken to address the risk and to better ensure that your efforts do not violate the law.

IV.  Specific Risks Faced by Referring Physicians in Telemedicine Audits:

  • Failure to Comply with Medicare’s Mandatory Claim Filing Requirements.

When representing physicians in telehealth audits and investigations, one of the first areas we discuss with our clients is how they were compensated for their efforts.  After conducting a telemedicine evaluation, did the physician bill the Medicare program directly for the Evaluation & Management (E/M) service conducted?  Although not necessarily determinative of fraud or improper conduct, this is one of the factors that Unified Program Integrity Contractors (UPICs), such as Qlarent, AdvanceMed, the CoventBridge Group, and SafeGuard Services LLC, will be examining.  It is important to keep in mind that you are listed as the referring provider on each of the orders for DME supplies that are issued as a result of the telemedicine evaluations that you have conducted.  It is relatively easy for a UPIC to pull a list of the referring providers who are listed on the claim forms submitted by DME suppliers and determine which providers did not bill for the E/M telemedicine service he or she allegedly conducted. Why does this matter?

In the absence of a bona-fide reassignment agreement, it is mandatory that you bill Medicare for the telemedicine evaluations that you are conducting. In fact, under the Social Security Act, § 1848(g)(4),[12] physicians and suppliers are required to submit claims to Medicare carriers for services furnished to Medicare beneficiaries on or after September 1, 1990.  Compliance with Medicare’s mandatory claim filing requirements are carefully monitored by Medicare Administrative Contractors (MACs).  Violations of this requirement can result in both Civil Monetary Penalties and / or exclusion from participating in the Medicare program.

The bottom line is simple.  Your failure to comply with Medicare’s mandatory claims submission requirements may very well lead to the initiation of a UPIC audit.

  • Failure to Comply with Federal and State Documentation Maintenance and Access Requirements.

One of the problems sometimes faced by physicians who have entered into an Independent Contractor business arrangement with a telemedicine marketing company is the fact that patient records are typically maintained by the telemedicine marketing company, not by the evaluating / referring physician.  When a DME claims audit is conducted by a UPIC, the program integrity contractor will also issue a request to the referring physician for a complete copy of the Medicare beneficiary’s medical records. Sample language that a UPIC may include in its letter to the referring physician may look like the following:

“The UPIC is reviewing claims associated with the beneficiaries referenced in the attached list, submitted by the DME supplier as noted, for supplies billed where you were identified as the referring physician.  We are therefore requesting the following medical documentation. . . “

Importantly, as a referring provider, you are required by regulation to maintain a copy of the medical documentation upon which your order and / or referral was based.  As required by 42 CFR § 424.516(f)(2)(i)(A):

(f) Maintaining and providing access to documentation. 

(2)(i) A physician or, when permitted, an eligible professional who orders, certifies, refers, or prescribes Part A or B services, items or drugs is required to –

(A) Maintain documentation (as described in paragraph (f)(2)(ii) of this section) for 7 years from the date of the service.

As a licensed medical professional, you should also keep in mind that your state’s Medical Practice Act invariably requires that you maintain a copy of the medical records for each of your patient.  For example, under Texas Medical Board Rule § 165.1(b)(1)[13]:

“(1) A licensed physician shall maintain adequate medical records of a patient for a minimum of seven years from the anniversary date of the date of last treatment by the physician.”

The failure to maintain copies of patients’ records has led to severe administrative sanctions.  In several recent cases we have seen, since the referring physician did not have a copy of the telemedicine evaluation notes conducted, the physician failed to submit them in response to a proper request for records from a UPIC.  When the physician failed to submit the records requested, CMS revoked the physician’s billing privileges for a period of 10 years.  The revocation action taken was based on the following:

“42 CFR § 424.535 – Revocation of enrollment in the Medicare program.

(a) Reasons for revocationCMS may revoke a currently enrolled provider or supplier’s Medicare enrollment and any corresponding provider agreement or supplier agreement for the following reasons:

. . .

(10) Failure to document or provide CMS access to documentation.

(i) The provider or supplier did not comply with the documentation or CMS access requirements specified in §424.516(f) of this subpart.

(ii) A provider or supplier that meets the revocation criteria specified in paragraph (a)(10)(i) of this section, is subject to revocation for a period of not more than 1 year for each act of noncompliance.”

To be clear, the government’s revocation of a physician’s Medicare billing privileges isn’t necessarily the end of this saga.  The failure to maintain adequate documentation and / or provide ready access to patient records when requested can lead to both a referral to a physician’s State Medical Board and, in some cases, a referral to the OIG for possible permissive exclusion action.

V.  Responding to a Telemedicine Audit or Investigation:

Every telemedicine audit by a UPIC and investigation by law enforcement is different.  If your telemedicine evaluations are being audited, it is essential that you consult with qualified health law counsel to better ensure that your case is properly handled.  Liles Parker attorneys have represented physicians, marketing companies and DME suppliers in a wide variety of telemedicine-related matters.  Give us a call for a free consultation.

Robert W. Liles Health Care AttorneyHave you received a request for telemedicine-related records?  Our experienced health law attorneys can advise you on how to best respond to a telemedicine audit and represent you throughout the complex appeal process that has been established. For a free initial consultation regarding your situation, call us at: 1 (800) 475-1906.

[1] A number of writers have argued that telehealth / telemedicine services were likely first provided by telegraph in the mid-1800’s and then in a more traditional format after the invention of the telephone in the latter part of the 19th century.

 [2] Medicare coverage of telehealth services was first passed as part of the Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251. 199.

 [3] CMS. 2001 Physician Fee Schedule List of Telehealth Codes. Available at:

[4] As an industry, practically everyone involved in the delivery of health care has long promoted the expansion of telehealth / telemedicine services, often pointing to improved patient access, long-term cost savings and better overall health outcomes as merely a few of the many advantages that will undoubtedly result as the use of telemedicine expands.

[5] A list of covered telehealth services payable under the Medicare Physician Fee Schedule when furnished via telehealth during Calendar Year 2020 can be found at:

[6] 42 C.F.R. § 410.78(b)(2).

[7] 42 C.F.R. § 410.78(b)(3).

[8] While somewhat dated, this December 2018 article entitled “Audits of Telehealth Services are Increasing. Do Your Telehealth Services Meet Applicable Requirements?provides a concise overview of the Medicare telehealth coverage limitations that were in place at that time.  Since Medicare’s coverage requirements in this area are quite dynamic, we recommend that you review the current rules.

[9] A copy of the March 2003 Special Fraud Alert is available at:

[10] Under § 1834(a)(17)(A)(i) – (iii) of the Social Security Act:

(i) The individual has given written permission to the supplier to make contact by telephone regarding the furnishing of a covered item.

(ii) The supplier has furnished a covered item to the individual and the supplier is contacting the individual only regarding the furnishing of such covered item.

(iii) If the contact is regarding the furnishing of a covered item other than a covered item already furnished to the individual, the supplier has furnished at least 1 covered item to the individual during the 15-month period preceding the date on which the supplier makes such contact.

[11] A copy of the November 2010 Special Fraud Alert is available at:


[13] Texas Medical Board Rule § 165.1(b)(1).