In the years since COVID-19 was declared a global pandemic, the rise of telemedicine and remote patient monitoring has rapidly changed healthcare delivery. While this technology offers significant benefits to providers and patients alike, it has opened the door to instances of fraud – and the Department of Justice (DOJ) has been ramping up its efforts to fight this occurrence.
CMS announced at the onset of the pandemic that it would not take enforcement action against any health insurance issuer that made mid-year changes to its offerings if it was doing so to provide greater coverage for telehealth services, or the changes reduced or eliminated cost-sharing requirements for telehealth services, even if the specific telehealth services covered by the change are not related to COVID-19.
Looser restrictions, combined with the greater flexibility in billing that telemedicine and remote patient monitoring provide, would be a positive outcome for most providers. Few would complain about any streamlining of the billing process. However, many bad actors saw this, and the growth of telemedicine generally, as a way to take advantage of the system. Last year, regulators decided they finally had enough.
Aggressive Pursuit of Telemedicine Fraud Cases
On July 20, 2022, the Department of Health and Human Services (HHS) Office of Inspector General (OIG) issued a special fraud alert that warned healthcare practitioners to exercise caution when entering into arrangements with purported telemedicine companies. Special fraud alerts are significant as they put the healthcare industry on notice that the OIG will be more aggressively pursuing fraud cases against practitioners who run afoul of the federal anti-kickback statute, the False Claims Act, and others. The July 20th alert specifically called out fraud schemes where telemedicine companies were intentionally paying physicians and other practitioners kickbacks to generate orders or prescriptions for unnecessary durable medical equipment, genetic testing, wound care items, or prescription medications, resulting in submissions of fraudulent claims to Medicare, Medicaid, and other federal healthcare programs.
On the same day, the Department of Justice also issued a press release announcing charges against dozens of individuals and companies for $1.2 billion in healthcare fraud. This was the result of a nationwide coordinated law enforcement action to combat telemedicine, clinical laboratory, and durable medical equipment fraud, and led to criminal charges against 36 defendants across 13 federal districts, including executives of telemedicine companies and clinical laboratories, durable medical equipment companies, marketing organizations, and medical professionals. Since then, cases have since continued to be announced, and the DOJ is showing no signs that it’s planning to ease up on its aggressive pursuit of fraud cases related to telemedicine.
Notably, the DOJ’s Health Care Fraud Strike Force (Strike Force) is in charge of investigating these types of cases . What began as a single operation in Miami has since grown to include 16 separate Strike Forces across 27 U.S. districts. As the former Deputy Chief in the U.S. Attorney’s Office in the Southern District of Florida’s major crimes section (and also director of FDA’s Office of Criminal Investigations), Buchanan’s George Karavetsos was involved in the first round of significant indictments that the Strike Force undertook in this arena back in 2007 and still maintains close connections with teams on the ground in Miami and across the entirety of the Strike Force operations.
It’s clear that, although the federal government was slow to become aware of and address the instances of fraud caused by proliferation of telemedicine during the pandemic, law enforcement has begun to catch up on investigating these crimes. The July 2022 HHS and DOJ actions were just the beginning of a total crackdown that is now well underway.
Remote Patient Monitoring Benefits Make It Ripe for Fraud
Remote patient monitoring technology had been a lifesaver (literally) for many providers during the pandemic. It enables the collection of patient data – such as blood pressure, blood sugar, pulse oxygenation, heart rhythm, and much more through wearable devices and sensors – without the need for an in-person to visit a healthcare facility. Remote patient monitoring has the ability to reduce the number of patients in a healthcare facility but perhaps more importantly, it also allows patients greater access to care at home, reducing costs to patients and payors alike. However, just like telemedicine fraud and the fact that patients need not visit a physical facility to acquire care, the technology does enable bad actors to take advantage.
From remote patient monitoring companies guiding providers towards higher and unnecessary reimbursement codes, to providers promoting unnecessary remote patient monitoring for patients and billing Medicare and other payors while receiving some form of kickback, the DOJ is on high alert for this type of fraud.
As the DOJ continues to prioritize fraud investigation, providers should be closely evaluating their practices with experienced counsel for any potential instances of fraud. Certainly, any provider engaging in fraudulent practices must stop immediately and contact litigation counsel.
Further, providers should conduct due diligence on all telemarketing companies with whom they have a relationship, as providers are being held liable for fraud in a majority of these cases involving violations of the federal anti-kickback statute, the False Claims Act, etc. Increasingly, these telemarketing companies are pushing medically unnecessary tests and/or prescriptions onto Medicare beneficiaries with laboratories and/or physicians billing Medicare for goods and services that are unneeded. In many of these cases, doctors, pharmacists or laboratories have no prior relationships with the patients they are purportedly submitting orders for. Thus, it is critical to ensure that providers have a true doctor-patient relationship when it comes to submitting orders or prescriptions via telehealth and that any billings associated with testing are consistent with the Centers for Medicare & Medicaid Services’ (CMS) CPT codes for reimbursement.
Additionally, behavioral health providers are now increasingly coming under the microscope for any telehealth services they provide that could constitute fraud, such as submitting claims for mental or behavioral telehealth services for a patient that may not exist or for an appointment that may not have taken place.
The Need for Partnering with Experienced Counsel
There is no question that the DOJ is doing everything in its power to end telehealth fraud. For providers and practitioners, it is critical to connect early on with legal counsel that have direct experience guiding clients through these exact types of cases.
Buchanan has the unique experience and knowledge to help healthcare and life science companies navigate any regulatory or white-collar defense, compliance and investigations matters. Our attorneys have worked on both sides of this battle – on the side of regulators and in court representing defendants. Whether the challenge is internal investigations, risk assessments, or litigation, our attorneys have worked with hundreds of clients and tried hundreds of cases involving allegations of healthcare fraud and abuse.