Practice Management Alert

Hint: You can’t bill for all phone calls to patients.

As the pandemic continues, many providers have taken advantage of the relaxing of certain rules and regulations. One of the tools the federal government can deploy during public emergencies is making certain entities immune to liability for certain measures that are deemed necessary to combat the emergency. The Department of Health and Human Services (HHS) recently released a fourth amendment to the Declaration under the Public Emergency Preparedness (PREP) Act that addresses telehealth during the current and continuing pandemic public health emergency (PHE).

Make sure you’re remaining compliant, especially if you’re taking advantage of the provisions under these special emergency declarations.

Background: The PREP Act was enacted in December 2005 and gives the secretary of the HHS the power to issue declarations that can remove liability for certain entities in situations where their efforts are combatting the emergency.

Grasp Context of the Amendment

The most recent amendment, issued Dec. 3, 2020, expands the qualified person definition to include “health care personnel using telehealth to order or administer Covered Countermeasures for patients in a state other than the state where the health care personnel are permitted to practice,” say attorneys Chris Eades, JD; Abby Kaericher, JD; and May Alao, JD, MPH, at Hall Render, in online analysis.

This isn’t a free pass for any licensed clinician to furnish any services to patients via telehealth, the attorneys caution.

It’s important to note that the declaration applies only to “Covered Countermeasures,” which HHS defines as “any antiviral, any drug, any biologic, any diagnostic, any other device, any respiratory protective device, or any vaccine manufactured, used, designed, developed, modified, licensed, or procured” or certain products, devices, or technology manufactured or used for the diagnosis, mitigation, prevention, treatment or cure of SARS-CoV-2, the virus that causes COVID-19, or to limit its harm or transmission.

Understand These Takeaways

Make sure you and your practitioners pay attention to state licensing laws and exemptions, especially knowing where patients are located, the attorneys say, and ensure that the service the clinician provides fully meets the definition of Covered Countermeasures. Make sure you’re complying with other federal requirements as well surrounding telehealth unless they are explicitly addressed by this amendment (or other regulations or waivers).

Also be careful to follow the rules around technology requirements surrounding telehealth services.

Be Wary of Rules Around Telehealth, Generally

HHS and the Centers for Medicare & Medicaid Services (CMS) issued a bevy of waivers that made it easier to connect with patients virtually and still get paid. But some practices aren’t following the specifics of the regulations, says Terry Fletcher, BS, CPC, CCC, CEMC, CCS, CCS-P, CMC, CMCSC, CMCS, ACS-CA, SCP-CA, owner of Terry Fletcher Consulting Inc. and consultant, auditor, educator, author, and podcaster at Code Cast in Laguna Niguel, California.

There’s a 60 to 70 percent error rate on telehealth service claims, Fletcher says, and points to the distinction between audio versus audio and video as a major problem area.

Many evaluation and management (E/M) services are being furnished via telephone, yet providers are submitting claims saying that they’re administered via audio and video interactions. Auditors are even confirming with patients that their interactions occurred without video engagement, with the patients verifying that they didn’t even have any video capability at that time, Fletcher notes.

Remember that telehealth refers to health services that include audio and video components.

If you’re uncertain about which services CMS (and most other commercial carriers) allow to be conducted via audio-only interactions, you can check current guidance. CMS has a list of which E/M codes can be furnished via telehealth versus audio-only services, both during the PHE and generally.

Resource: Find the current (as of Dec. 1, 2020) list of telehealth services versus audio-only services at www.cms.gov/Medicare/Medicare-General-Information/Telehealth/Telehealth-Codes.

Also be careful about which staff members are making phone calls and interacting with patients over the phone or other technology, according to your claims, Fletcher recommends. CMS has a list of approved providers and staff like registered nurses probably don’t make the cut.