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Be prepared to address allegations of misconduct
The dramatic expansion of telehealth across the United States in response to the COVID-19 pandemic has allowed providers to continue servicing their patients during this stay-at-home era while minimizing disruption to their business. Telehealth expansion also has spurred innovation by enabling companies to harness technology, identify new ways of delivering patient treatment, collect and aggregate patient data, and lower costs associated with brick and mortar provider facilities.
While telehealth represents tremendous opportunity for providers, it also poses substantial risk. The current proliferation of telehealth services has been prompted in large part by changes to federal and state regulations and requirements in response to the COVID 19 pandemic. The shifting landscape and complex web of federal and state regulations makes legal compliance for telehealth providers extraordinarily difficult. Moreover, even prior to the COVID 19 pandemic, federal enforcement authorities prioritized rooting out fraud in the telehealth industry, as evidenced by the prosecution in the past year of several telemedicine providers accused of improper billing, kickbacks, bribes, and prescribing medically unnecessary drugs or devices. The federal government is now providing hundreds of millions of dollars in stimulus funds to support the delivery of telemedicine services. The flow of federal dollars to telehealth providers and the overall visibility of this industry means that law enforcement actively will pursue bad actors in this space, particularly those who seek to profit unlawfully from the circumstances created by the pandemic.
Telehealth Providers Should Implement Strong Compliance Programs
Compliance programs are designed to prevent misconduct from occurring. They ensure that applicable laws and regulations are followed, provide mechanisms for reporting suspected misconduct, and set clear expectations and obligations for employees of an organization. Law enforcement authorities look to the adequacy of companies’ compliance programs in assessing culpability and criminal and civil penalties.
Given the current environment and the importance of compliance programs, telehealth providers should take immediate steps, with input from legal counsel, to implement effective and comprehensive compliance programs. Among other measures, providers should consider the following:
Up Next: Considerations When Facing a Possible Enforcement Action
Considerations When Facing a Possible Enforcement Action
Companies that are prepared properly to deal with law enforcement put themselves in a favorable position to minimize or avoid corporate liability, prevent missteps which can lead to additional criminal or civil exposure, and move on quickly from any misconduct that has occurred. The high visibility of the telehealth industry underscores the need for healthcare providers to be equipped to interface with law enforcement authorities in the event of allegations of misconduct. In this regard, companies should keep in mind the following:
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Providers hoping to succeed in expanding or integrating telehealth capabilities should act promptly in dealing with the risks associated with this industry. Comprehensive and effective compliance programs will help prevent misconduct from occurring in the first instance and will enable companies to stay compliant with an evolving legal landscape. Moreover, organizations that are prepared to address allegations of misconduct when they arise will be in a favorable position to assess the allegations, respond appropriately, interface with law enforcement if necessary, and move on quickly to focus on their business.
Ariel Glasner is a partner based in Blank Rome LLP’s Washington, D.C. office specializing in white collar defense and government investigations. He counsels clients and individuals with respect to corporate compliance and government enforcement actions related to a wide range of matters, including financial fraud, healthcare fraud, public corruption and bribery, the False Claims Act, and allegations of professional misconduct. He can be reached at firstname.lastname@example.org 202.772.5963.
Jane Thomas is an associate in Blank Rome LLP’s Washington, D.C., office where she concentrates her practice on insurance recovery and a wide range of general litigation matters. She can be reached at email@example.com or 202.420.2577.