Last year, we published an eAlert titled, “Telehealth in a Changing World – Trending Risks and How to Minimize Potential Exposure” in which we discussed certain telehealth rules and regulations that were eased due to the COVID-19 pandemic. We also offered insights on government enforcement trends that were likely to follow and practical considerations to mitigate risk.
To recap, federal rules and regulations were, and continue to be, temporarily relaxed or lifted in response to the COVID-19 pandemic. On one hand, this flexibility provides significant opportunities for telehealth companies, health care providers and technology companies. On the other hand, the regulatory rollback came with amplified government scrutiny and oversight that could lead to dire consequences under the Anti-Kickback Statute and False Claims Act. As we anticipated, the increased opportunity to care for patients remotely has led to a new wave of fraud and abuse schemes by nefarious actors trying to leverage the more lenient standards.
We are now witnessing an uptick in pandemic-related federal investigations and enforcement actions. In September, the Department of Justice announced that charges were filed nationwide against 138 defendants, including 42 doctors, nurses and other licensed medical professionals for their “alleged participation in various health care fraud schemes that resulted in approximately $1.4 billion in alleged losses. ...” Notably, approximately $1.1 billion of those alleged losses are connected to fraud committed via telehealth. Let this sink in for a moment — more than three-quarters of the purported $1.4 billion in announced losses stem from alleged telemedicine fraud.
Clearly, the Department of Justice (DOJ) has made telehealth fraud and abuse enforcement a top priority. Assistant Attorney General Kenneth A. Polite Jr. stated, “The charges announced today send a clear deterrent message and should leave no doubt about the department’s ongoing commitment to ensuring the safety of patients and the integrity of health care benefit programs, even amid a continued pandemic.”
It’s not just the DOJ that is focusing on telehealth fraud. The Centers for Medicare and Medicaid Services’ Center for Program Integrity announced that as part of its “2021 National COVID-19 Health Care Fraud Takedown” operation, it has taken a record-breaking number of administrative actions related to telehealth fraud by revoking the Medicare billing privileges of 256 medical professionals for their involvement in telehealth schemes.
What does this mean to you? Once again, we predict that moving forward, the government’s focus on telehealth will likely continue to trend upwards. Now is a good time to take a closer look at the state of your telehealth practice to ensure that you do not end up in the government’s crosshairs. To learn about actions providers of telehealth services can take to avoid potential telehealth fraud and abuse, please contact Katherine Pullen, Jeffrey Segal or another member of Warner’s Health Law Practice Group.
Warner’s Health Law Practice Group
Warner Norcross + Judd’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.