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On July 20, 2022, the U.S. Department of Health and Human Services' Office of Inspector General (OIG) issued a Special Fraud Alert warning physicians and other practitioners to exercise caution when entering into telemedicine arrangements that have certain suspect characteristics.
Based on both the OIG's and the Department of Justice's experiences in bringing fraud and abuse enforcement actions, the OIG identified the following characteristics as suspect:
- The patients for whom the physician/practitioner orders or prescribes items or services are 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 physician/practitioner does not have sufficient contact with or information from the patient to meaningfully assess the medical necessity of the items or services ordered or prescribed.
- The telemedicine company compensates the physician/practitioner based on the volume of items or services ordered or prescribed, which may be based on the number of purported medical records that the physician/practitioner reviewed.
- The telemedicine company only furnishes items and services to Federal health care 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 health care program beneficiaries, but may in fact bill Federal health care 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 physician/practitioner's treating options to a predetermined course of treatment.
Physicians and practitioners who become involved with suspect telemedicine arrangements are at risk for civil, criminal and administrative liability for accepting illegal kickbacks and submitting or causing to be submitted false claims to Federal health care programs.
The OIG's Special Fraud Alert was issued the same day that the Department of Justice announced a nationwide enforcement action that levied criminal charges against 36 defendants in 13 cities across the U.S., for more than $1.2 billion in alleged fraudulent telemedicine schemes. The investigation primarily targeted alleged payments of illegal kickbacks and bribes by laboratory owners and operators in exchange for the referral of patients by medical professionals working with telemedicine and digital medical technology companies. According to the DOJ, telemedicine schemes accounted for more than $1 billion of the $1.2 billion in losses associated with this enforcement action.
If you are a physician or practitioner involved with a telemedicine company, or are contemplating entering into such an arrangement, we urge you to carefully consider the OIG's warning and seek legal counsel to ensure compliance. If you need assistance, we are here to help.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
