Medicare DME/TELEMEDICINE: Friend or Foe? Part 3 by Ken Berley, DDS, JD, DABDSM


I just returned from the AADSM meeting in Boston. I was truly honored to be asked to speak at this year’s AADSM meeting and I want to take this opportunity to thank everyone for your encouragement and positive feedback.

The one thing that caught me by surprise at the AADSM was the number of commercial organizations who are now focused on providing telehealth services for dentists to coordinate the care of their patients with a Sleep Physician via a telemedicine portal. In Dental Sleep Medicine, we have a number of IDTF (Independent Diagnostic Testing Facilities) companies popping up that offer a number of services that seem appealing. For example: they will provide HST’s for your patients to use; they will score the results of your HSTs; their companies’ sleep physician will provide a diagnosis of OSA based on the HST results; their sleep physician will provide a face-to-face patient consultation for your patients via a telemedicine portal and the IDTF sleep physician will recommend an oral appliance and write a prescription for you to fabricate an oral appliance based on the face to face consultation.

I was asked on several occasions at the AADSM meeting if telemedicine was legal for dentists practicing DSM. When faced with this question I always returned the question by asking, “Why do you want to do telemedicine? Are there no Sleep Physicians in your area?” Invariably, I was informed that the dentist involved did not like the local sleep physicians and did not want to lose control of their patients. You should know that if you are wanting to practice telemedicine to get around establishing relationships with your local sleep physicians, in my opinion you’re making a serious mistake. We need local sleep physicians on our team to share liability with us. However, to bring clarity to a difficult subject, in this article I will look at the pertinent legal issues associated with telehealth.

Question #1

Is it legal for a dentist (DME POS) Medicare provider to participate in Telehealth Services?

Medicare has published guidelines on virtually every subject imaginable. You should know that telehealth services are paid under Part B of Medicare.

Therefore, for a dentist to participate in Telehealth Services, he should be enrolled as a Medicare Part B provider. It can be argued that under Medicare Part B, dentists should be treated as a physician. If treated as a physician, it is possible that a dentist practicing DSM could qualify as an originating site for telehealth services. The reason this is so important is that telemedicine under Medicare is limited to Distant Site Practitioners with qualified Originating Sites.

Department of Health and Human Services
Centers for Medicare and Medicaid Services
Telehealth Services

The relevant part follows:

Rural Health Series

An originating site is the location of an eligible Medicare beneficiary at the time the service furnished via a telecommunications system occurs. Medicare beneficiaries are eligible for telehealth services only if they are presented from an originating site located in:

  • A county outside of a Metropolitan Statistical Area (MSA)
  • A rural Health Professional Shortage Area (HPSA) located in a rural census tract

The Health Recourses and Services Administration (HRSA) determines HPSA’s and the Census Bureau determines MSA’s. You can access HRSA’s Medicare Telehealth Payment Eligibility Analyzer to determine a potential originating sites eligibility for Medicare tele-health payment.

Each calendar year, the geographic eligibility of an originating site is established based on the status of the area as of December 31st of the prior calendar year. Such eligibility continues for the full calendar year.

Originating Sites authorized by law are:
  • The offices of physicians or practitioners
  • Hospitals
  • Critical Access Hospitals (CAHs)
  • Rural Health Clinics
  • Federally Qualified Health Centers
  • Hospital-based or CAH-based Renal Dialysis Centers (including satellites)
  • Skilled Nursing Facilities (SNF’s)
  • Community Mental Health Centers (CMHCs)

As a condition of payment, you must use interactive audio and video telecommunications systems that permits real-time communications between you (Sleep physician at the IDTF), at the distant site, and the beneficiary (Medicare Patient), at the originating site (Dental Office).

Billing and Payment for Professional Services Furnished Via Telehealth

Submit claims for telehealth services using the appropriate CPT or HCPCS code for the professional service along with the telehealth modifier GT, “via interactive audio and video telecommunications systems” (for example, 99201 GT). By coding and billing the GT modifier with a covered telehealth procedure code, you (Sleep Physician at the IDTF) are certifying that the beneficiary was present at an eligible originating site when you furnished the telehealth services.

Billing and Payment for the Originating Site Facility Fee

Originating sites are paid an originating site facility fee for telehealth services as described by HCPCS code Q3014. Bill the MAC for the originating site facility fee, which is a separately billable Part B payment.

Discussion

Is Telemedicine face-to-face sleep physician examinations legal for dentists practicing Dental Sleep Medicine and filing Medicare? Obviously, that is a difficult question to answer. However, if you are a Part B Medicare provider and you live in a rural area without a sleep physician, the answer is MAYBE!

The primary issue is whether a dentist who is a Medicare Part B provider, living in a rural area can qualify as an originating site and whether the IDTF can provide the home sleep test in a manner that qualifies as a “Medicare” approved sleep test. Medicare has declared that dentists cannot participate in any aspect of sleep testing, which may be violated in a telehealth arrangement.

Additionally, Medicare patients are supposed to be given choices of physicians where care can be obtained. If your Medicare patients are routinely directed to participate with the IDTF telehealth sleep physician, that could be a violation.

Do not expect telemedicine providers to know your state laws or bail you out if you get in trouble.

My big concern is whether the Sleep Physicians working for the IDTFs are establishing themselves as the patient’s sleep physician of record. Is this physician having the patient fill out adequate medical histories and drug histories. Do they have access to the patient’s medical records? In other words, are the telehealth sleep physicians truly participating as the patient’s physician. Are they prepared to write prescriptions for Oral Appliances and CPAP? Will they monitor the patient’s CPAP usage or appliance success?

Problems do arise when we look at AADSM protocols. Who will perform the recall of your patients? Will the IDTF sleep physician perform yearly recalls for all your sleep patients and is that level of recall adequate to provide appropriate recommendations. In my opinion, it is unlikely that your patients will be recalled by the IDTF Sleep Physician.

Are these sleep physicians prepared to defend their medical decisions and recommendations in a court of law? My worry is that these physicians who are providing telemedicine services do not consider themselves to be the physician of record for your OSA patients. If you are sued, will these sleep physicians be in a position to help defend you? That
is unlikely!

Remember, even if you do not participate in Medicare and forgo accepting Medicare benefits, Medicare rules still apply. The federal government assumes that if you are over the age of 65, you are incapable of making sound medical decisions. Therefore, to participate in telemedicine and fabricate a MAD, would require full disclosure of patient options, informing the patient of offices that would accept Medicare reimbursement and having the patient sign a Private Contract for the provision of services. Just because you aren’t filing the patient’s Medicare doesn’t mean they do not have applicable Medicare regulations.

Question #2

Is it legal for a dentist to participate in telehealth services and file private medical insurance?

That question is still difficult to answer. However, twenty-four states have removed the rural area restriction and twenty-eight states have decided that the originating site can be somewhere other than a physician’s office. So, it is much more likely that a dental office could qualify as an originating site under private medical insurance. Additionally, United Healthcare has specifically stated that a dental office can qualify as an originating site.

The Federation of State Medical Boards has published an overview of state telemedicine regulations. You can access your state’s telemedicine regulations at:

https://www.fsmb.org/Media/Default/PDF/FSMB/Advocacy/GRPOL_Telemedicine_Licensure.pdf

Federation of State Medical Boards: Overview of Telemedicine Policies

Forty-eight (48) state boards, plus the medical boards of District of Columbia, Puerto Rico, and the Virgin Islands, require that physicians engaging in telemedicine are licensed in the state in which the patient is located.

Fifteen (15) state boards issue a special purpose license, telemedicine license or certificate, or license to practice medicine across state lines to allow for the practice of telemedicine.

Four (4) state boards require physicians to register if they wish to practice across state lines.

Twenty-eight (28) states, plus the District of Columbia, require both private insurance companies and Medicaid to cover telemedicine services to the same extent as face-to-face consultations.

Eighteen (18) states currently require only Medicaid to cover telemedicine services.

One (1) state requires only private insurance companies to reimburse for services provided through telemedicine.

Discussion

Medical insurance policies and some medical boards require medical practitioners to obtain full histories and physical examinations before diagnosing any condition or prescribing any therapy. Some states require an “in person” physical. The treatment is said to occur at the location of the patient, and most states require a medical license in the state where the patient presents for care. Each practitioner must be very aware of the telemedicine regulations in each state where he is treating patients as these regulations seem to change rapidly.

In order to practice telemedicine, you must enter into an agreement where you will be referring telemedicine patients for examination, HST, diagnosis and prescription for Oral Appliance Therapy. The IDTF/Sleep Physician will receive payment for these services, and the referring dentist will benefit from a diagnosed patient and prescription for OAT. My worry is that this arrangement could be considered a violation of Federal Stark Laws or Federal Anti-Kickback Statutes. You should know, these laws are still in full effect when providing telemedicine and it could be devastating if it were determined that your arrangement was a violation.

I cannot help but worry about the logistics of appointing a patient for telehealth services. If you have a significant number of patients each day needing telehealth services, it could present a logistical nightmare. At the first appointment, they would need health history, sleep history, physical examination and an HST ordered. During the second appointment, the sleep physician would need to go over the results and recommend an oral appliance or CPAP. If the IDTF sleep physician is the physician of record, he should write the RX for CPAP if indicated and follow the patient’s CPAP results and compliance. If all of these appointments are originating from a dental office, it could become a real logistical nightmare.

A dental office filing Medicare or private medical insurance as an originating site, will eventually be questioned. Medicare or the private insurance will eventually evaluate whether you (a Dental Office) are a qualified originating site. Sadly, this may be after you have received benefit payments for some time. If an audit/case review determines that you are not an appropriate originating site you could be forced to reimburse all moneys paid.

Conclusion

If you find yourself in a rural area with no sleep physicians within reasonable driving distance, telemedicine may provide an opportunity to have a sleep physician participate in the care of your patients. However, I would not file for compensation as an originating site until Medicare determines that a Part B (Dentist) in a rural area qualifies as an appropriate originating site. You should make sure that the telemedicine sleep physician has a license in your state and is willing to accept your patients and be the sleep physician of record. He should follow your patients whether they are utilizing oral appliances or CPAP. He should be seeing your patients on yearly recall and be responsible for writing any prescription for CPAP.

If you intend to file private medical insurance and utilize telemedicine, I would contact a local healthcare attorney and have him/her evaluate whether you are likely to qualify under your state laws. I would much rather pay for a legal opinion than find out later that you are violating the law. Do not expect telemedicine providers to know your state laws or bail you out if you get in trouble.

If you decide to use telemedicine for diagnosis and face-to-face examination, please make sure that your patients receive a full physical from a local physician. Your telemedicine physician cannot perform a physical. As we all know OSA is a serious medical condition with many comorbid diseases. You do not want to be responsible for your patient’s physical health. Since your sleep physician is in a remote location, you need to make sure that your patient’s health is monitored on a yearly basis by a local PCP.

Telemedicine could be a great addition to your practice if you have a dental office in a remote area of this country. However, there are many limitations that apply. For any dentist contemplating telemedicine, make sure you know the rules and regulations that apply for your particular practice location. In my opinion you should not use telemedicine to avoid referring your patients to a local sleep physician. If you are ever sued, that decision could be a costly mistake.

 

Dr. Ken Berley is a practicing general dentist with over 30 years of private practice experience focusing on complex reconstruction and 20 years of experience as an attorney licensed to practice law in Arkansas and Texas. He has extensive experience as a litigator and was a full partner in Travis, Borland and Berley, Attorneys’ at Law before moving to Northwest Arkansas. Dr. Berley is a Diplomate of the American Sleep and Breathing Academy and a Diplomate for the ABDSM. He lectures in the area of sleep medicine risk management. He has provided TMD treatment for many years and has incorporated Sleep Medicine in his office for the last 3 years.

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