Telehealth company sues HHS for allegedly excluding overseas physicians

A telemedicine physician group sued HHS and CMS for allegedly refusing to cover care provided by its critical-care physicians residing overseas.

Regulators issued a waiver mandating that Medicare pay for critical-care services offered virtually during the COVID-19 pandemic even if the providers and beneficiaries are in different locations. But HHS said that it cannot pay for services that are administered outside the U.S., according to a lawsuit filed by RemoteICU (RICU) Monday in a Washington D.C. federal court.

RICU claimed that HHS and CMS are violating the telehealth waiver and seeks to compel Medicare to pay for telehealth services provided by overseas physicians amidst an intensivist shortage and the pandemic.

“It is a matter of life and death for the many COVID-19 patients—Medicare patients, often in the age group most vulnerable to COVID-19—who so desperately need the critical care that RICU can provide hospitals if HHS fulfills its vital obligation to pay for these services,” the complaint reads.

CMS said it does not comment on pending litigation.

RICU argued that the telehealth statute puts no restrictions on the physician’s location during care visits, simply defining it as a “distant site.” The focus is entirely on the patient’s location, RICU said.

During the initial height of the pandemic, telehealth visits accounted for about 50% of all physician visits in April, according to an analysis by the Chartis Group and Kythera Labs. While that ratio dropped to around 20% in early December, it has still broadened access for those who are hesitant to go to physician offices for in-person care.

Many patients are expected to continue to use video to consult with their physicians after the pandemic, although utilization rates will likely depend, in part, on reimbursement rates.

Some states like Colorado have signed bills that bar insurers from requiring that patients have a pre-established relationship with a virtual care provider or imposing additional location, certification or licensure requirements on providers as a condition of telehealth reimbursement. They also broadened the types of services that will be covered via telehealth and eliminated restrictions on devices used to access virtual services.

Historically, Medicare has not paid for critical-care services provided via telehealth. RICU urged HHS and CMS to change that practice given the estimated shortfall of 7,900 intensivists, which COVID-19 has exacerbated.

In December, CMS added more than 60 services—including critical-care services—to the Medicare telehealth list that will continue to be covered post-pandemic. But regulators have still refused to allow Medicare to pay for telehealth services furnished by providers residing abroad, according to the lawsuit.

“More importantly, and tragically, HHS is denying Medicare beneficiaries desperately needed medical assistance in the midst of a global pandemic,” the complaint reads. “HHS has no good reason for letting this harm continue.”


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