The future of healthcare post-COVID-19

The COVID-19 pandemic has created unprecedented disruption for the healthcare industry, forcing hospitals, organizations fighting infectious diseases, healthcare workers, social services and more to think about alternative ways of delivering medical services while adapting to the new environment. Michael F. Ruggio, partner at US legal firm Nelson Mullins, discusses the future of healthcare, online vs in person medical services, and healthcare fraud.

Under the Centers for Medicare & Medicaid Services' (CMS) temporary new rules, hospitals will now be able to “transfer patients to outside facilities such as ambulatory surgery centers, inpatient rehabilitation facilities, hotels, and dormitories, while still receiving hospital payments under Medicare.” 

The temporary new rules also state that a healthcare system can “use a hotel to take care of patients needing less intensive care while using its inpatient beds for COVID-19 patients.” These flexibilities will also serve to further decant services typically provided by hospitals such as cancer procedures, trauma surgeries and other essential surgeries. This massive result is estimated to result in a large decline in what would have traditionally been in-patient services. 

When this is added to the reductions in regulatory barriers to telehealth access, the decline of in-hospital delivery of chronic, acute, primary and specialty care will be much greater than these numbers. Clearly, hospitals and larger health systems need to adapt to these changes immediately or risk both loss of patient markets and potential financial viability.

Changes in the way healthcare is delivered during the pandemic to reduce staff exposure, preserve PPE and minimise the impact of patient surges is reflected in the explosion of online provider visits. Both patients and healthcare providers are focused on reducing in-person visits whenever possible. 

The new reality is that many visits, if not most, can be conducted remotely, which is much more cost-efficient and often a more effective means of care. Telehealth is clearly the future for much of the healthcare industry, but the great concern is that the laws and regulations that are required to guide this expansion are unable to keep pace with the growth.

A significant danger to the telehealth movement is the risk of abuse and fraud by unscrupulous providers and fraudsters. Telehealth presents certain unique risks, given the emerging technology and that guardrails have been removed by the government with many waivers. 

These new waivers are having a substantial impact in the way traditional laws and regulations - including the Stark Law and Anti-Kickback Statute - are viewed by providers. These new waivers could lead to fraudulent telecommunication or phone room operations anywhere in the world taking advantage of this new opportunity.

As the healthcare industry shifts the way it provides medical services, practitioners should review these four steps to help guide the best practices possible and avoid violation of the law and potential fraud:

1. Provide secure telehealth online services and detailed communication. This is a legal requirement to provide secure services under HIPAA and will also prevent sensitive and protected health information from falling into the wrong hands.
2. Implement a comprehensive document verification and memorialization system. This record-keeping element is not only required by law but will also serve as a defense for any billing issues down the road.
3. Be aware of the waivers by CMS regarding traditional regulations and COVID-19 exceptions.
4. Train all healthcare providers on the new risks created by telehealth care to get things right from the start. 

Michael F. Ruggio represents hospitals and other healthcare providers, including medical device and pharmaceutical corporations and their respective officers and directors in matters relating to federal regulation and investigation.