Retrospective audits of Medicare claims billed during the COVID-19 Public Health Emergency (PHE) are accelerating as the government's window to act on 2020 and 2021 claims narrows. CMS issued a wave of Section 1135 waivers between January 31, 2020, and the PHE's end on May 11, 2023, that changed which telehealth originating sites, distant-site practitioners, and documentation standards applied. Auditors and investigators reviewing those claims today do not always apply the rule that was actually in force on the date of service. When a reviewer measures a 2020 or 2021 claim against 2026 telehealth requirements instead of the waiver that governed it, a compliant claim can be recharacterized as an overpayment, or worse, as a False Claims Act violation. Physicians who billed telehealth, audio-only, or home-originated visits during the PHE should know exactly which waiver applied to each claim before a retrospective reviewer decides for them.
The Waiver Rules That Applied at the Time
Section 1135 waivers took effect when the Secretary of Health and Human Services declared the COVID-19 Public Health Emergency on January 31, 2020, and stayed in force until the PHE ended on May 11, 2023. For telehealth, the waivers removed the standard originating-site and geographic restrictions, so a beneficiary could be seen at home instead of at a qualifying facility, expanded the list of eligible distant-site practitioners, and allowed audio-only visits for services that ordinarily required video. The Consolidated Appropriations Act, 2023, then extended the home-originating-site flexibility beyond the PHE's end date, on a schedule Congress has repeatedly revisited since. A claim billed in April 2020, a claim billed in 2024 under the statutory extension, and a claim billed today can each be governed by a different rule for the identical service. Documenting which rule applied on the date of service is the first fact question in any retrospective review.
How OIG Flagged Telehealth Billing Risk
The HHS Office of Inspector General (OIG) measured the first year of that shift directly. A September 2022 data brief, reviewing telehealth claims from March 1, 2020, through February 28, 2021, found that of roughly 742,000 providers who billed Medicare for telehealth, 1,714 exhibited billing patterns OIG classified as high risk, accounting for $127.7 million in payments tied to about 500,000 beneficiaries. OIG's own report drew the same line that separates a billing error from fraud: most telehealth growth during the pandemic reflected legitimate access to care, not misconduct. The risk indicators OIG built for that report, extreme visit volume, maximum-level billing on every encounter, billing both a telehealth and a facility fee for the same visit, are the same markers a retrospective reviewer is likely to apply to a 2020 or 2021 claim file today.
A claim billed correctly under the telehealth waiver in effect on the date of service does not become fraudulent because the waiver has since expired.
The Enforcement Clock on 2020 and 2021 Claims
The government's own coordination has run on a similar timeline. Attorney General Merrick Garland directed the creation of the COVID-19 Fraud Enforcement Task Force by memorandum on May 17, 2021, pairing the Department of Justice (DOJ) with HHS-OIG and more than a dozen other inspectors general. DOJ added five regional strike forces in September 2022 and August 2023, covering Florida, Maryland, California, Colorado, and New Jersey. The False Claims Act gives the government six years from the date of the violation to bring a claim, extendable to as much as ten years when a claim is discovered later. For services billed in 2020, the straightforward six-year window closes in 2026. A provider contacted through an audit notice, civil investigative demand, or grand jury subpoena about a 2020 or 2021 claim should assume the review is happening on a clock the government is watching closely.
Why Early Legal Counsel Is Critical
It is critical that healthcare providers promptly retain experienced healthcare defense counsel upon receiving a subpoena, audit notice, investigative request, or other government inquiry tied to COVID-era billing. Early legal intervention can protect the provider's rights, ensure appropriate responses to government requests, avoid inadvertent admissions, preserve relevant defenses, and allow counsel to communicate with investigators on the provider's behalf. Delaying legal representation can significantly affect the outcome of a matter, particularly where the claims at issue were billed under a waiver that has since been repealed or replaced.
How Health Law Alliance Can Help
Health Law Alliance represents physicians whose PHE-era claims are being reviewed against standards that did not apply on the date of service, with 25+ years of combined experience across 5,000+ matters. If your practice has received an audit notice, subpoena, or civil investigative demand tied to telehealth or other COVID-era billing, contact us for a free, confidential consultation so an attorney can reconstruct the waiver record before the government does.
