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With the public health emergency possibly coming to an end, the government is looking to continue telemedicine expansions.
While the government appreciates that telemedicine and telehealth were vital through the pandemic and can be an effective tool in certain situations as people increasingly return to in-person visits, it is also acutely aware that this area is ripe for fraud. “Generally, telehealth is the remote or virtual delivery of health care services. Patients can receive a wide range of telehealth services, including check-ins with their primary care providers, mental health care, and specialty services. Similarly, telehealth can be provided through a wide range of technologies, including video chats, remote patient monitoring devices, and phone calls.”
As the U.S. Department of Health and Human Services Office of the Inspector General (“HHS-OIG”) noted, “[i]t is important that new policies and technologies with potential to improve care and enhance convenience achieve these goals and are not compromised by fraud, abuse, or misuse.” As part of its Work Plan, HHS-OIG issued Report No. OEI-02-22-00150, which has a reported issue date in 2023. As part of their compliance program, providers and business associates should incorporate telehealth into their policies and procedures and annual HIPAA risk analysis. As HHS stated, “[i]f telehealth cannot be provided in a private setting, covered health care providers should continue to implement reasonable HIPAA safeguards to limit incidental uses or disclosures of protected health information (PHI).” Reasonable safeguards include technical, administrative, and physical safeguards, which every person should be evaluating on the respective annual risk analysis.
HHS-OIG is not the only government agency looking at telehealth. On April 21, 2022, the United States Department of Justice (“DOJ”) announced that “[a]n indictment was unsealed today in federal court in Brooklyn charging Elemer Raffai, an orthopedic surgeon, with health care fraud in connection with a $10 million scheme involving the submission of false and fraudulent claims in Medicare and Medicare Part D plans.”This matter focuses on the payment of kickbacks by telemedicine companies to a physician, who in turn allegedly submitted millions of dollars in false and fraudulent claims to Medicare on behalf of beneficiaries without even examining them or based on conversations on the phone that lasted less than three minutes.” For $25 to $30 per patient, the physician and other allegedly caused the submission of false and fraudulent claims.
This begs the question – was it worth it? This physician and other could, if they are found guilty or enter a guilty plea, be sentenced under the Federal Sentencing Guidelines. Additionally, their participation in government programs could be revoked or excluded. Having a robust compliance program in place that strives to cultivate a culture of compliance is critical to mitigating fraud.
Rachel V. Rose, JD, MBA, advises clients on compliance, transactions, government administrative actions, and litigation involving healthcare, cybersecurity, corporate and securities law, as well as False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine in Houston. Rachel can be reached through her website, www.rvrose.com.