By Matt Fisher, Esq
Twitter: @matt_r_fisher
Host of Healthcare de Jure – #HCdeJure
The COVID-19 pandemic has brought about numerous changes to the healthcare industry, most notably on the regulatory front. When the pandemic reached emergency levels in the mid-March time period, the order officially declaring a state of emergency was quickly followed by many regulatory waivers, announcements of enforcement discretion, or outright changes to the regulations. Those changes along with the interpretive guidance came out on what felt like a daily or even more frequent basis. The flurry of changes meant that all, whether the government agencies, hospitals, physicians, and others, were all scrambling to figure out what to do.
Telehealth is one area that went from extremely low utilization to the predominant means of delivering healthcare services. The Centers for Medicare and Medicaid Services started that trend by providing reimbursement equal to in-person visits for telehealth along with not paying attention to location or patient relationship requirements, among other areas. Further, the scope of who could provide services by telehealth was expanded over time, some of which came in response to pushes from particular industry groups. While the types of services that can be delivered and the types of clinicians that could bill may have received more general attention, the detail of how to file a claim and how to fill in billing documentation became very complex. At times, guidance could be completely altered from one announcement to another.
The changing ground rules on the reimbursement front are not relegated solely to telehealth. A lot of new services specifically connected to COVID-19 were rolled out, such as testing for the virus and care related to the virus for those infected. The exact billing codes and modifiers changed as new paradigms were established.
On top of the expansion of services, the government also recognized that individuals needing care may not be able to afford out of pockets costs given the cratering that occurred to the economy. To mitigate those impacts, the government permitted a lot of individual financial responsibility to be waived or otherwise not collected. Indiscriminately not collecting patient financial responsibility is a relatively significant departure from the norm, since waiving financial responsibility for all patients or even a decent number without determining need would be viewed as a form of fraud.
Other programs rolled out to benefit physicians were various funding initiatives to direct money to physician groups to make up for the lack of revenue caused by patients not coming in. At times money would just show up in individual physicians’ bank accounts or the accounts of practices. However, none of that money came free of strings. Instead, the money would be followed by lengthy attestation documents that, in brief, had physicians certifying to the government that the funds would be used for the appropriately designated purposes and that operations within the practice fit within the eligibility criteria identified by the government. Submission of the attestation was official and binding confirmation.
As already suggested though, each and every change under went at least a couple of iterations that would all come with its own guidelines for implementation. Given the fast pace of changes, how many practices or individuals could realistically state that each and every claim or attestation was submitted correctly? Likely none. Further, it is possible that a “correct” action one day could be incorrect the next. What can be done in that regard? Document, document, and document some more.
While The federal Department of Health and Human Services does have a single landing page to find all COVID-19 related documents, will that page always be there? Can the desired guidance or announcement be found? If there is skepticism about being able to locate everything resource in the future, how can documentation be achieved? Aside from what should be the standard practice of having appropriate support for claims, it may be advisable to maintain a copy of all guidance, announcements, and other statements that informed why a particular course of action was followed. Having copies of all documentation may be helpful in the event an adverse action is attempted to be taken down the road, even in spite of many statements that no fraud or abuse recoveries will be attempted absent clear indicia of fraud.
Individual maintenance of documents from the government may provide a necessary defense if things go a little haywire. Considering the need for the documentation may also push even more attention to all of the changes since collecting the documents may offer the needed push to dig a little deeper or confirm an understanding. While most are clearly trying to do the right thing and just survive with a practice still intact following the pandemic, preparing for all possible outcomes (even an optimistically unlikely worst case one) can be more fruitful from the start than trying to prove a negative in the future.
This article was originally published on Mirick O’Connell’s Health Law Blog and is republished here with permission.