Criminal Defense Lawyers

Defending Against Allegations of Fraudulent Telehealth Services

As telehealth has surged in popularity during the COVID-19 pandemic, so too have allegations of fraud and abuse related to telehealth services. With telehealth here to stay even after the pandemic subsides, healthcare providers need to be proactive in implementing compliance safeguards to prevent fraudulent activity and defend against allegations.

Understanding Telehealth Fraud Risks

There are several common schemes that enforcement agencies like the Department of Justice (DOJ) and Health and Human Services’ Office of the Inspector General (OIG) are cracking down on:

• Billing for services not rendered: Providers billing for telehealth services that did not actually occur. This could be unintentional, like if a medical assistant pre-populates a record and the patient no-shows, or intentional fraud.
• Billing for medically unnecessary services: Ordering excessive or unnecessary tests, prescriptions, or equipment like durable medical equipment (DME) or genetic tests.
• Using non-compliant telehealth platforms: Failing to use HIPAA-compliant video software both during and after the COVID-19 public health emergency waivers expire.
• Ignoring licensure requirements: Providing telehealth in states where the provider is not licensed.
• Failing to authenticate patient identity: Enabling identity theft by not properly verifying patient identity before services are provided.

Several recent settlements highlight the government’s increased scrutiny of telehealth services. For example, a $43 million False Claims Act settlement with Cerebral Inc. for allegations of prescribing stimulants without proper evaluations, and a $5 million settlement with Push Health Inc. related to invalid prescriptions.

6 Telehealth Compliance Safeguards

While government enforcement in this area will likely continue to ramp up, the good news is providers can take proactive steps to prevent non-compliant activity and defend against allegations of fraud:

1. Ensure Proper Documentation

Thoroughly document each telehealth visit, including the technology platforms used, and have physicians sign off on all charges. Perform daily charge reconciliation to verify documentation exists for all claims.

If audio-only platforms were used improperly, bill the visit as a phone call using CPT codes 99441-99443. In other cases, submit corrected claims within 12 months to avoid allegations of upcoding or billing for unrendered services.

2. Establish Medical Necessity

Document medical decision making to establish necessity for any tests, prescriptions, equipment orders, or specialty referrals.Include details on symptoms, exam findings, past treatment attempts, and how recommendations relate to the patient’s diagnosis.

3. Monitor Prescribing Patterns

Utilize data analytics to monitor provider prescribing patterns for unusual spikes or outliers that could indicate over-prescribing or medically unnecessary orders.Clinical protocols and decision support tools can also guide appropriate testing and treatment plans based on each patient’s unique presentation.

4. Use HIPAA-Compliant Platforms

Once COVID-19 waivers expire, immediately transition back to HIPAA-compliant telehealth technologies. Failing to do so could lead to breach notifications and OCR penalties.In the meantime, enable all encryption, privacy controls, and notifications to patients about the increased privacy risks of non-public platforms.

5. Verify Licensure

Before scheduling visits with patients located out-of-state, verify the provider holds an active license in that state. Consider leveraging licensure compacts like the Interstate Medical Licensure Compact to ease this administrative burden.

6. Authenticate Patient Identity

Validate patient identity prior to initiating visits, especially for new patients who lack existing records. Techniques can include checking photo IDs against video feeds or knowledge-based authentication questions.

Responding to Allegations of Fraud

Despite best efforts at compliance, allegations still may occur. If investigators come knocking, providers shouldn’t panic.“When it comes to fraud, ignorance is not a defense,” said attorney Jenna Godlewski. “You need to know your payer policies.”Here are some tips if your organization faces accusations:

• Don’t ignore inquiries: Responding promptly to questionnaires or subpoenas demonstrates good faith efforts at compliance. Refusing to cooperate raises red flags.
• Seek legal counsel: Engage experienced attorneys and consultants to guide the response process. They can help assemble documentation, ensure narratives are consistent, and identify potential defenses.
• Review documentation: Thorough, accurate documentation is key to defending against allegations of fraudulent telehealth services. Review records to verify visits occurred, necessity was established, and proper platforms were used.
• Cooperate with investigators: Set up interviews with physicians, billers, and other staff as requested. Honesty and transparency is essential, even if processes fell short.
• Implement corrective actions: If any deficiencies are identified, work quickly to enhance compliance programs, internal controls, training, and monitoring to prevent continued non-compliance.

By taking a proactive compliance stance, documenting thoroughly, and responding appropriately if allegations occur, providers can effectively defend telehealth services against fraud accusations. While telehealth is here to stay, so too is government scrutiny of this evolving care delivery method.

Implications and Future Outlook

As telehealth continues its explosive growth, surpassing $20 billion in 2023, scrutiny and enforcement in this area is unlikely to slow down any time soon.Providers can expect to see impacts such as:

• More robust compliance requirements for telehealth documentation, verification of identity/licensure, and platform security. Failure to comply could result in loss of payments or credentialing privileges.
• Increased audits and oversight by Medicare and commercial payers around medical necessity and appropriateness of telehealth services.
• Greater patient engagement in the visit experience and care decisions via remote monitoring devices and patient-reported outcome measures. This facilitates care personalization while increasing accountability through greater transparency.
• Accelerated adoption of digital health tools like RPM and chronic care management to enable continuous care outside the walls of traditional facilities. Regulators promote these technologies to reduce fraud risks.

While regulators aim to root out fraud and abuse, it’s important they don’t overcorrect in ways that limit appropriate access to innovative models of care delivery. Telehealth has immense potential to expand access and improve outcomes, so over-burdensome restrictions could negatively impact progress on quadruple aim goals.Balancing these competing priorities will continue posing challenges for lawmakers and industry leaders alike. One thing is clear though – with telehealth now mainstream, healthcare organizations must prioritize compliance or risk facing the long arm of the law.