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Publications | June 3, 2020
6 minute read

Telehealth in a Changing World – Trending Risks and How to Minimize Potential Exposure

The COVID-19 pandemic has led to a paradigm shift in the world of telehealth medicine. Federal rules and regulations, which historically limited Medicare telehealth visits to beneficiaries living in rural areas, have been temporarily relaxed or lifted with one goal in mind: to provide Medicare beneficiaries with greater access to health care while containing the spread of the virus. Among other sweeping changes, providers may now waive Medicare beneficiaries’ copays and deductibles in certain instances, where such waivers likely would have been deemed an impermissible “kickback” prior to COVID‑19. Telehealth care is also no longer limited to beneficiaries residing in rural areas; instead, physicians can now provide telehealth services to Medicare beneficiaries regardless of their location. These are just two examples of the many efforts aimed at expanding reimbursements for telehealth services. 

Unsurprisingly, the relaxation of telehealth rules and regulations has led to an explosive growth in virtual care. On April 28, 2020, the White House announced that “[d]ata shows that telehealth utilization is increasing because of new flexibilities for the provision of Medicare telehealth services and potentially because of the Department of Health and Human Services’ (HHS) policy change that allows providers to use popular video platforms to connect with patients.” The announcement went on to state that the “rapid growth in telehealth shows how this technology can help the American health care system meet patients’ needs during a national emergency.” 

But with this explosive growth will likely come a wave of fraud and abuse schemes by nefarious actors trying to leverage the more lenient standards. Consequently, we will likely see an uptick in post‑pandemic federal investigations and enforcement actions. U.S. Attorney General William Barr announced in March that “it is essential that the Department of Justice (DOJ) remain vigilant in detecting, investigating and prosecuting wrongdoing related to the [COVID‑19] crisis.” Barr tasked every U.S. Attorney’s Office with making these efforts a priority. 

Telehealth is also not a new source for government fraud investigations. Indeed, last year, the DOJ announced one of the largest telehealth fraud schemes ever investigated and prosecuted by the federal government, with more than $800 million in purported losses and criminal charges against dozens of physicians, medical professionals and others. Three executives involved in this scheme have already pleaded guilty, with one physician ordered to pay over $7 million in restitution. In a separate case, a New Jersey physician recently pleaded guilty to a $13 million health care fraud conspiracy with telehealth companies. Elsewhere, an anesthesiologist was indicted last year for allegedly conspiring to submit fraudulent health care claims related to telehealth medicine. 

So what actions should providers of telehealth services take to avoid becoming the latest headline on the DOJ’s website? Put simply, now more than ever, providers must exercise caution and due diligence. Here are a few things to consider: 

    Warner’s health care team understands your industry, and we are ready to help you navigate health care fraud and abuse laws and regulations in implementing your business goals. Additionally, our health care litigation team is here for providers and entities facing a dispute. Our experienced attorneys will guide you through the entire litigation process, from pre‑dispute strategy planning to resolution. Our team has helped resolve countless disputes, including matters arising under the federal and state False Claims Acts, anti-kickback statutes, Stark law and FDA enforcement actions. We also counsel and help resolve licensing complaints, payer audits and appeals, DEA investigations and contractual disputes, and we regularly defend personal injury and medical malpractice actions and health care employment disputes.