Doctors Outside US Cannot Bill Medicare for Telehealth, Court Confirms   

A telehealth company's attempt to strike down a decision stating that virtual care physicians who are outside of the U.S. are not eligible for Medicare reimbursement was dismissed by a federal appeals court Jan. 18.

The U.S. Court of Appeals for the District of Columbia Circuit concluded that the company did not provide a "concrete claim for payment" as required by the Medicare Act. Instead, the company will have to rely on hospitals to continue the fight for allowing Medicare reimbursement for telehealth visits conducted by physicians located outside the country.

In April 2020, RemoteICU, a company providing remote specialist physician services to health systems, sought to clarify whether the emergency rule allowing providers to bill Medicare for critical care delivered via telehealth — enacted soon after the public health emergency was declared — extended to physicians located outside the U.S.

The company contracts with around 60 intensive care physicians who live and work abroad but were trained in the U.S. and hold U.S. board certifications and licenses, according to the decision issued by the district court.

The Centers for Medicare and Medicaid Services said in June 2020 that the Medicare Act's ban on foreign payments "remains in effect during a public health emergency and is not affected by telehealth flexibilities for the COVID-19 pandemic," which meant that physicians living abroad were ineligible for Medicare payments for virtual visits rendered.

Last February, RemoteICU filed a complaint alleging that this determination "was contrary to law and arbitrary and capricious."

"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 original complaint states.

The company also moved for a preliminary injunction to prevent CMS' parent agency, the Department of Health and Human Services, from denying foreign-based telehealth providers Medicare reimbursement.

But the company's complaint and motion for injunction were both dismissed, leading RemoteICU to file the appeal.

Now, the appeal has also been dismissed. The three-judge panel hearing the appeal concluded that RemoteICU "failed to present its challenge in the context of a specific administrative claim for reimbursement of service." The company only a presented a "prospective request for guidance," and failed to meet the criteria laid out for judicial review of Medicare claims.

Further, RemoteICU acknowledged that its client hospitals are continuing to ask whether HHS will allow Medicare to reimburse telehealth providers located abroad. This led the court to conclude that the "client hospitals are adequate proxies to channel [RemoteICU's] general claim that its services are eligible for Medicare reimbursement through a concrete claim for payment."

This means that for the legal battle to move forward, RemoteICU will have to depend on its hospital proxies to file a claim and seek judicial review.

CMS declined to comment, and RemoteICU did not return a request for comment in time for publication.