The spike in telehealth usage during the COVID pandemic has generated a plethora of questions about the ramifications of geography. Let’s cover a few.
First, as I mentioned in a prior article, Medicare applies a geographic adjuster. That means that if you’re supposed to bill using the locality of where the physician is sitting, it’s possible to do geographic arbitrage: plunking your physician in the highest-reimbursed area.
I’m not recommending that. In fact, it’s part of my argument that the location of the physician shouldn’t matter. And I want to remind folks that there’s no statute or regulation explicitly requiring billing where the physician sits. To be clear, there is also no statute or regulation specifically supporting my position. But first, when there is no specific law, it is hard to argue that any course of action is illegal. Moreover, billing where the patient is makes the most sense.
But billing is far from the only factor we need to consider regarding any telehealth service. I think that most people are attuned to the various licensure issues that can arise. There’s absolutely no doubt that in most situations, the physician should be licensed both in the location where he or she is usually practicing and in the state where the patient is usually located. The word “usually” there is important. When either the patient or the physician is on vacation for a few days in a particular state, the risk that anyone insists licensure is required is low. In addition, if the telehealth visits are ancillary to an in-person visit, whereby the patient travels to the clinic, there is a reasonable argument that the physician needn’t be licensed in the state where the patient is. But I should mention that there is always a small risk that a state would take the position that a license is required. I believe it was Kansas that tried to insist that physicians treating patients in a plane flying over the state should be licensed there. I can’t swear that the state was Kansas, and the incident happened in the early 1990s. That horror story doesn’t change the fact that from a practical perspective, the risk associated with a visit of a couple of days is low.
But licensure isn’t the only worry. There’s a more overlooked and probably more significant concern: medical malpractice. Some medical malpractice insurers will attempt to deny coverage for some telehealth visits. Frankly, the slap on the wrist you’re likely to get from a board complaint will feel like a sweet caress compared to the consequences if the insurer attempts to dodge coverage of a malpractice claim. Understanding reimbursement and licensure are important, but understanding medical malpractice is vital.
I will acknowledge that some of my advice isn’t intellectually consistent. While I generally recommend billing where the patient is and not where the physician is, if the physician is outside the United States, I’m a bit more worried about Medicare’s position that services outside the U.S. aren’t covered. Since I’m asserting that the service occurs wherever the patient is, the physician’s presence in Paris shouldn’t matter. I worry about it nevertheless. But if your compliance team is reaching out to your physicians when they are somewhere domestic and singing the beautiful Moody Blues song “I Know You’re Out There Somewhere,” I think you can change the tune to Frankie Goes to Hollywood and tell them to “Relax.”
Going back to the blues, I will admit that the times I’ve been mistaken are impossible to say, but I don’t think this is one of them.
Programming note: Listen every Monday for Healthcare attorney David Glaser’s “Risky Business” segment on Monitor Mondays with Chuck Buck, 10 Eastern.
