Top Ten Telehealth Billing Rules for Fee For Service (FFS)


Can you survive an OIG Audit?

When the Public Health Emergency (PHE) was extended for the 10th time on July 15, 2022, continuing the PHE through October 13, 2022, so were many waivers under the 1135 CARES Act of March 20, 2020. However, if you are not keeping up with the commercial payers and the individual state executive orders and waivers, many of these likened waivers have expired.

There are many truths and myths on what you can and cannot report under the telehealth services. Let us clear up some of those myths so that you and your practices are compliant. There are nine audits right now that the OIG is focused on, directly related to the Part B E/M Services billed during the COVID-19 PHE. It is time to take inventory of how your practices are handing telehealth coding, billing and reporting during the PHE. My rule of thumb is, “If the OIG is looking into it, you should be looking into it as well.”

First, let’s look at the top ten telehealth billing rules for Fee for Service (FFS) under the COVID-19 Cares Act listed on the most recent version of the CMS COVID-19 FAQ sheet. I remind you that these are temporary flexibilities as long as the PHE is in effect. These are the rules for Medicare. Please check with your commercial contracts for individual coverage policies of telehealth.

  1. To bill an office visit code, 99202-99215, there must be both an audio and video connection with the patient. Interactive two-way video.
  2. If there is no video connection during the patient encounter, the visit becomes a telephone call code 99441-99443 for an MD/DO or NP or PA. These codes are not permitted for non-physician clinical staff that cannot report independently to Medicare.
  3. The platform used must be listed/documented in the patient medical record, and if not a HIPAA secured EMR, but a smart phone video chat option like FaceTime or Skype, the patient needs to be informed that the link may not be HIPAA secured.
  4. Consent needs to be obtained once per year and documented in the patient’s medical record.
  5. If the video portion of the audio and video visit cuts out during the visit, make sure time is documented, because the visit now becomes a phone call code.
  6. Do not solicit patients for telehealth services.
  7. You can use either “time” or “MDM” to level your code, but medical necessity always must exist to bill for any services to Medicare. Giving patients test results over the phone, refilling prescriptions, calling patients to schedule referrals, do not fall into the category of medically necessary telehealth visits.
  8. Physicians (MD/DO) and NPPs (NPs, PAs and CNS) can report Telehealth Services, with office visits codes, as long as an audio and video connection exists. Other clinical QHP’s on the telehealth approved list may only bill their specific specialty services (i.e. PT/OT, Speech Pathologists, etc.), which do not fall into the category of E/M.
  9. Certain therapists can report their specific services under telehealth. Check the telehealth services list with CMS on which codes are approved.
  10. A statement to confirm the telehealth visit is to “slow or to stop the spread of COVID-19” should be reflected in the patient medical record to reflect good faith and not only convenience for the service(s).

In addition to codes that will come off the list when the PHE expires, there are codes that are available until the end of 2023 or the year the PHE expires. Make sure you reference that list, (link below), so that you can be prepared on your reimbursement and not be surprised if you suddenly get a denial for a service that is no longer covered once the PHE ends.

There is also congressional legislation that was passed in March 2022, the Consolidation Appropriations Act, 2022. The language in this legislation states, “…during the 151-day period beginning on the first day after the end of such emergency period, flexibilities under the 1135 waivers still in effect will continue” “section 1135(g)(1)(B). I’ll interpret that to say, that as the PHE ends, then Telehealth will extend for 151 days after this ending date.

Also, when Congress passed the CAA (Consolidated Appropriations Act 2021 and 2022), they mandated that HHS -OIG and MedPAC report on the efficacy and financial appropriateness of the Telehealth services under the waiver before any permanent rules are made. HHS has been clear that once the PHE ends, and once the 151-days are up, phone call codes will not be active for payment.

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