By CHRIS SABIS, Member, Sherrard Roe Voigt Harbison
Remember the 1994 movie version of Maverick? Remember when Maverick would say “My old pappy always used to say, well, he said a lot of things…?” My father said a lot of things, too. One of his favorite sayings was: “Anything is possible, except squeezing the toothpaste back into the tube.” That aptly describes the current expansion of telehealth during the coronavirus emergency.
In the face of COVID-19, telehealth is having its day. Republicans and Democrats alike have called for the expansion of telehealth during the pandemic, particularly for seniors. The American Medical Association is also on board. The Centers for Medicare and Medicaid Services has responded with a slew of telehealth waivers during the pandemic, and it does not look like telehealth is going to vanish with a vaccine. Roll Call has written about the chorus of commentators calling for a continued liberalization or elimination of telehealth regulations. The American Psychiatric Association, Forbes, and the Brookings Institute are all singing from the same sheet. As W.S. Gilbert wrote, “Never knew such unanimity on a point of law in my life!”
Last month, an article entitled Telehealth EHR Integration Key to Meet COVID-19 Demand told the story of the University of Pittsburgh Medical Center (UPMC) Pinnacle’s efforts to integrate its expanding telehealth practice into its electronic health records (EHR) system. UPMC Pinnacle wanted to respond to the growing need for telehealth services during the pandemic but was finding that “[t]oggling between the telehealth platform and EHR technology could be burdensome for providers and patients alike.” UPMC Pinnacle implemented new systems to streamline the process, requiring virtual training of “over 750 providers and over 1000 staff members.” The intensive training took only a week “because the telehealth solution was integrated on the same EHR platform.” Once healthcare providers invest millions of dollars implementing telehealth processes like this, there will be significant practice and financial incentives to continue to practice telehealth. You can’t squeeze the toothpaste back into the tube.
Not to say that toothpaste is a bad thing. It helps separate us from the animals. Telehealth is a critical part of a modern response to a contagion and can benefit the healthcare system going forward. But too much toothpaste can get messy. Telehealth regulations exist because many fear telehealth as a source of fraud. My first ever SRVH blog addressed an alleged telehealth fraud scheme charged here in Nashville, and there are other recent examples like an alleged massive scheme in Georgia. Moreover, the UPMC Pinnacle story demonstrates how telehealth is being incorporated into EHR systems. The Department of Justice labeled EHR and EHR-related technology and as an enforcement priority just before COVID-19 changed the healthcare landscape. The intersection of these technologies may raise new compliance concerns.
Continued advancement of health information technology requires continued vigilance. UPMC Pinnacle found that most of its patients “weren’t even using telehealth, and even some clinicians were reticent to adopt the tool.” Healthcare entities expanding their use of telehealth to better serve their patients should take steps to ensure compliance and to educate both patients and providers on what constitutes proper telehealth services. If they do not, enforcement actions in telehealth will become more frequent and more expensive.
Chris Sabis is a member with Sherrard Roe Voight Harbison (SRVH). A former Assistant United States Attorney in the Middle District of Tennessee, he is a member of the American Health Law Association and the Health Care Compliance Association. He concentrates his law practice in the areas of Government Compliance & Investigations and Litigation. He has extensive experience in False Claims Act (FCA) matters involving allegations of healthcare and procurement fraud. For more information, go to srvhlaw.com/