Patient Monitoring Services Need Increased Scrutiny to Prevent False Claims Act Enforcement Action

Lenders to, buyers of, and managers of medical practices, rural health care clinics, and federally qualified health centers should increase their due diligence of remote patient monitoring services used by physicians. Physicians should also increase their scrutiny of the remote patient monitoring services they use.

Ryan Cochran: ©Epstein Becker Green

Telehealth Prevalence Grows

The Centers for Disease Control and Prevention reported that in 2021, 37% of adults had used telehealth services in the last twelve months. Telehealth can be provided through video chats, remote patient monitoring devices, and phone calls. Remote patient monitoring involves the collection and analysis of patient data used to develop and manage a treatment plan related to a chronic or acute health condition. Remote patient monitoring can benefit patients by eliminating the time and cost of travel to a provider. Remote patient monitoring can also increase a patient’s adherence to a treatment plan.

Nancy Jones: ©JW Healthcare Consulting

For physicians, patient monitoring services can increase net patient revenue. Chronic Care Management is one of several monitoring services to help patients stay on track by getting support for their chronic illness between visits. Chronic Care Management is coordinated services done outside of the regular physician office visits. These services are typically not face-to-face and allow eligible practitioners to bill for at least 20 minutes or more of care coordination services per month with an average reimbursement of $38-$65 per qualifying patient. Physicians should consider patient monitoring services as a way to increase the quality of patient care and increase net patient revenue.

While there are many reputable patient monitoring services, there is no concrete way to determine if a patient monitoring service is reputable. However, there are guidelines that must be followed for patient monitoring services to comply with CMS guidelines, and those guidelines should be confirmed by the patient monitoring service provider in advance of delivering the services like patient eligibility, consent, certified EHR, allotted time per patient, patient care plan, coding compliance and good record keeping for auditing purposes.

Patient Monitoring Services Under Scrutiny

Still, remote patient monitoring services are under scrutiny and a source of risk. In a December 2022 update, the OIG encouraged medical providers to be aware of prevalent fraudulent telehealth schemes. The OIG has announced that it will conduct additional audits of Medicare Part B telehealth services related to remote patient monitoring in Fiscal Year 2023.

Two recently concluded cases evidence potential risks.On December 20, 2022, the United States Attorney’s Office for the Eastern District of Pennsylvania, in a coordinated effort with OIG and others, announced a settlement in a qui tam case captioned U.S. ex rel. Doe v. BioTelemetry, Inc., et al., No.: 2:18-cv-01688 (E.D. Pa.). In the case, the government alleged a health care company improperly billed Medicare and other federal health care programs for cardiac monitoring services that were performed overseas in violation of federal law that prohibits payment for service furnished outside the United States.

On February 3, 2023, the United States Attorney’s Office for the Western District of New York announced that, in a coordinated effort with OIG, the government had resolved allegations arising under the False Claims Act against a health care company that provides, among other services, remote cardiac monitoring services. The government alleged that the provider utilized technicians who lacked required credentials to conduct remote cardiac monitoring readings and misrepresented the location of where it provided services to obtain higher reimbursement from Medicare.

Due Diligence is Necessary

Violations of the false claim act by patient monitoring services can result in exclusion from the federal health care program, loss of medical license from state medical board, fines, and fraud and abuse litigation expense. The potential recoupment of fines by CMS can jeopardize a practice’s ability to cash flow and access borrowed funds necessary to maintain operations.

Due diligence and self-audits of patient monitoring service billing can reduce the risk of exclusion from the federal health care program, loss of medical license from state medical board, fines, and fraud and abuse litigation expense. Both should include benchmarking and sampling. Benchmarking is a comparison and measurement of the practice’s use of patient monitoring services to other practices. Sampling is a cost-effective way to identify potential risk.Identify a meaningful sample size. Review the billing and coding performed by the patient monitoring service.

Due diligence and self-audits can include a review of the following:

• Do the technicians have the required credentials?
• Are the services provided by technicians in a proper location? A location must be HIPAA compliant to protect the patient’s privacy.With the prevalence of outsourcing, after hours call centers, and remote help desks ensure that the technicians are in an eligible location. Are the services billed at the location in which they are actually provided?
• There must be at least twenty minutes of interactive communication with the patient over the course of thirty-day period. Does the patient monitoring service track the time of interactive communication and maintain records supporting the time spent in interactive communication? For example: Consider a monitoring service vendor who billed 20 minutes for each CCM patient in an 8-hour day in multiples of 30-plus patients per day which is not sufficient time to capture the reported CCM’s which could result in an overpayment by Medicare.
• Review the patient monitoring service contract. Are all rates and discounts properly billed? All required documentation created and maintained? Contractual indemnity provisions.
• Medicare and private insurers may have different payment policies. Confirm the provider is complying with the applicable payment policy.

For lenders and buyers, the review may reveal a heightened level of transaction risk. The risk may caution whether the transaction should be completed. The risk may also inform price or inform the need and terms of an indemnity reserve. For physicians, management, and boards, the review may necessitate self-disclosure to satisfy the obligation to report and return overpayments.

Ryan K. Cochran is member of Epstein Becker Green whose practice focuses on distressed health care organizations.

Nancy Jones is the managing partner and founder of JW Healthcare Consulting.