RemoteICU sues HHS for not reimbursing for telehealth provided by physicians outside of the country
The Medicare Act "prohibits Medicare payment for services that are not furnished within the United States," according to the filing.
RemoteICU, a telemedicine provider group, is suing the Department of Health and Human Services and the Centers for Medicare and Medicaid Services for not reimbursing telehealth services provided by physicians who are located outside the United States, according to a federal lawsuit filed last week in Washington.
RICU wants reimbursement for telehealth services provided within the U.S., but not necessarily by a physician who lives within its borders.
The company employs physicians who live outside the country, but are U.S. board-certified critical-care specialists and licensed in one or more U.S. jurisdictions. With RICU's telecommunications system, these physicians can provide critical-care services in U.S. hospital ICUs, the lawsuit said.
"Although RICU's physicians live abroad, they serve as full-time, permanent staff members of the U.S. hospitals at which they serve patients," the company said in the court filing.
"By employing U.S.-licensed intensivists who live overseas, RICU has enabled the American healthcare system to recapture talent that would otherwise be lost to it – and this has helped to alleviate the ongoing shortage of intensivists in American hospitals."
When CMS expanded the list of telehealth services for which it reimbursed in December 2020 to include critical care services, RICU began offering its physicians to hospitals that couldn't afford ICU telehealth without Medicare reimbursement, the court filing said.
However, after the company reached out to several officials from HHS and CMS, it was notified that Medicare could not reimburse the client hospitals for RICU's services, because the Medicare Act "prohibits Medicare payment for services that are not furnished within the United States," according to the filing.
The company is seeking a preliminary injunction to stop HHS and CMS from denying Medicare reimbursement for telehealth services on the basis of a provider's physical location outside of the United States at the time of service.
WHAT'S THE IMPACT?
RICU claims that, by failing to reimburse for the critical care telehealth services provided by its physicians, HHS and CMS are causing "immediate harm both to RICU and to the public."
It argues that it's filling a gap in critical care that has been exacerbated by the pandemic.
"There remains [a] significant unmet need for critical care services, as desperately sick patients have overwhelmed ICU resources across the country," RICU said in the court filing.
"In some cases, lack of adequate care can mean the difference between life or death. And one of the groups most at risk from death and serious illness due to COVID-19 is the elderly – the very same population that relies upon Medicare."
Without reimbursement, RICU says that some of its current clients, as well as potential customers, will not be able to offer its services.
The company argues that this causes "significant, unrecoverable monetary damages" because tele-ICU providers that use physicians located within the U.S. are eligible for reimbursement and therefore have a competitive edge over RICU.
Further, it says that it has already begun losing business because of hospitals' inability to receive Medicare reimbursement.
THE LARGER TREND
CMS has widely expanded the list of telehealth services it will reimburse for during the pandemic to include services such as emergency department visits, initial inpatient and nursing facility visits, and discharge-day management.
While only 14 states currently have true "payment parity" for telehealth, 43 states and D.C. have implemented a telemedicine coverage law, according to Foley & Lardner report.
That report, among others, claims telehealth will continue to grow as an integral part of healthcare as time goes on.
Last year, Geisinger health system in Danville, Pennsylvania, implemented telehealth ICU technology in several of its hospitals to support its in-person clinical staff.
ON THE RECORD
"The Critical Care Ban is causing irreparable harm to RICU, which is suffering ongoing financial and reputational harms that cannot be remedied in the future," the court filing said.
"The balance of the equities favors an injunction, because Defendants have already admitted that there is a desperate medical need for the critical care that RICU would provide but for the Critical Care Ban.
"And, finally, preliminary injunction would be in the public interest because, across the United States, Americans stricken by the COVID-19 pandemic are in desperate need of critical care – a need that RICU can help meet. It is not hyperbole to say that the requested injunctive relief is in the public interest because it could save lives."
Twitter: @HackettMallory
Email the writer: mhackett@himss.org
Healthcare Everywhere, Every Day
The onset of the COVID-19 crisis a year ago, with its widespread quarantines and lockdowns, offered telemedicine its moment to shine after years of under-fulfilled promise. As states look toward a post-pandemic world it's time to build on that promise.
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