In response to the ongoing COVID-19 public health emergency (the “PHE”) first declared on March 13, 2020, the Centers for Medicare & Medicaid Services (“CMS”) issued blanket Section 1135 Waivers to expand, albeit on a temporary basis during the PHE, the range of healthcare professionals who can provide Medicare-covered telehealth services to include physical therapists, occupational therapists, speech language pathologists, and other non-physician practitioners.  (See also, CMS Fact Sheet, “Medicare Telemedicine Health Care Provider Fact Sheet” (March 17, 2020) and CMS’s “COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers” (December 1, 2020)).

In addition to the 1135 Waivers referenced above, CMS also made regulatory adjustments that allowed home health agencies to use telecommunications services alongside in-person visits, so long as: (i) the use of technology is related to the skilled services being furnished, and (ii) the use of technology is included in the plan of care with a description of how the technology will help achieve goals without substituting for an in-person visit (See also, Covered Telehealth Services for PHE for the COVID-19 Pandemic effective March 1, 2020” (updated on January 14, 2021)).

In a January 26, 2021, announcement (the “HHA Telehealth Announcement”), the Department of Health and Human Services, Office of Inspector General (“OIG”) gave notice that it was adding a new audit and evaluation project (“HHA Telehealth Project”) focused on the implementation of the above referenced telehealth waivers by home health agencies during the PHE.   As described by the OIG in the HHA Telehealth Announcement, the HHA Telehealth Project – entitled “Audit of Home Health Services Provided as Telehealth During the COVID-19 Public Health Emergency” – will, “evaluate home health services provided by agencies during the COVID-19 public health emergency to determine which types of skilled services were furnished via telehealth, and whether those services were administered and billed in accordance with Medicare requirements.” As described in the HHA Telehealth Notice, the OIG will report any services that were inappropriately billed and will make corresponding recommendations to CMS based on the this the results of the HHA Telehealth Project. The resulting audit report is expected to be issued in 2022.

We expect that this will not be the last audit announced which is related to COVID-19 funding and services.  In fact, concurrent with the HHA Telehealth Announcement, the OIG also announced the addition of another telehealth-related audit and evaluation project to be added to the current OIG Work Plan.  This project – entitled, “Audits of Medicare Part B Telehealth Services During the COVID-19 Public Health Emergency” – is focused more broadly on the use of telehealth technology in the treatment of Medicare beneficiaries outside of the home health context.

While an ounce of prevention is worth a pound of cure, there are still plenty of options and solutions available to Medicare providers that wish to safeguard themselves against the potential downside of future telehealth audit and oversight activity by the OIG.  Clearly, a robust regulatory compliance program that includes telehealth as an audit priority is one such option.

We will continue to monitor enforcement activities on the federal and state level relating to the rendering of telehealth services.


This article is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, but which are not referenced in this article.

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