Practitioner Beware: OIG Issues Telemedicine Fraud Alert

The increasing number of fraudulent schemes involving telemedicine companies prompted the Office of Inspector General for the Department of Health and Human Services to recently issue a special fraud alert.

The alert came on the heels of a nationwide crackdown on a $1.2 billion telemedicine fraud scheme leading to charges against three dozen defendants in 13 districts.

There has been an increasing acceptance and use of telemedicine, some of which has grown out of the Covid-19 epidemic. However, with that acceptance has come a growing number of investigations and enforcement actions against those taking advantage of its popularity.

The alert identifies seven suspect characteristics in healthcare arrangements between telemedicine companies and healthcare providers.

• The purported patients for whom the practitioner orders or prescribes items or services were identified or recruited by the telemedicine company, telemarketing company, sales agent, recruiter, call center, health fair, and/or through internet, television, or social media advertising for free or low out-of-pocket cost items or services.

• The healthcare practitioner does not have sufficient contact with or information from the purported patient to meaningfully assess the medical necessity of the items or services ordered or prescribed.

• The telemedicine company compensates the practitioner based on the volume of items or services ordered or prescribed, which may be characterized to the practitioner as compensation based on the number of purported medical records that the practitioner reviewed.

• The telemedicine company only provides items and services to federal healthcare program beneficiaries and does not accept insurance from any other payor.

• The telemedicine company claims to only furnish items and services to individuals who are not federal healthcare program beneficiaries but may in fact bill federal healthcare programs.

• The telemedicine company only furnishes one product or a single class of products (e.g., durable medical equipment, genetic testing, diabetic supplies, or various prescription creams), potentially restricting a practitioner’s treating options to a predetermined course of treatment.

• The telemedicine company does not expect practitioners (or another practitioner) to
  follow up with purported patients, nor does it provide practitioners with the information required to follow up with purported patients (e.g., the telemedicine company does not require practitioners to discuss genetic testing results with each purported patient).

OIG notes that these types of volume-based fees not only implicate and potentially violate the federal anti-kickback statute, but they also may corrupt medical decision making, drive inappropriate utilization, and result in patient harm.

Each violation of the federal anti-kickback statute constitutes a felony punishable by a maximum fine of $100,000, imprisonment up to 10 years, or both. Conviction also will lead to exclusion from federal healthcare programs, including Medicare and Medicaid.

Last May, we wrote about how the OIG had telemedicine in its crosshairs. And, we have written about a number of different investigations involving telemedicine.

The alert is intended to encourage healthcare providers to exercise caution and use heightened scrutiny when entering into arrangements with telemedicine companies that have one or more of the suspect characteristics mentioned above.

The Health Law Offices of Anthony C. Vitale can assist you in determining whether any proposed arrangement is suspect and can defend you should you become the target of an investigation. For more information you can contact us at 305-358-4500 or send us an email to info@vitalehealthlaw.com and let’s discuss how we might be able to assist you.