On July 20, the Office of Inspector General ("OIG") for the Department of Health and Human Services published a Special Fraud Alert on Telemedicine. Over the last year, as telehealth services expanded dramatically during the COVID-19 pandemic, there have been a number of enforcement actions reported by OIG following its investigation into payments for telehealth services.
The Special Fraud Alert identifies a list of seven suspect characteristics in healthcare arrangements between telemedicine Companies and healthcare Practitioners (e.g., physicians and non-physician practitioners). The list was developed following OIG's and the Department of Justice's recent investigative experience on telehealth services and their criminal and civil enforcement activity related to the False Claims Act and the Anti-Kickback Statute.
OIG recommends Practitioners consider the characteristics of any telehealth arrangement before agreeing to participate since practitioners may face criminal, civil, or administrative liability depending on the facts and circumstances. The following is a high-level summary of the seven suspect characteristics, which we do not believe is an exhaustive list:
- Purported patients are identified and recruited through various sources that advertise free or low out-of-pocket cost items or services.
- Practitioner's contact with purported patients does not have sufficient contact to allow a meaningful clinical assessment for the medical necessity of the items or services ordered or supplied.
- Telemedicine Company compensates the Practitioner based on the volume of items or services ordered or prescribed which may be compensation based on the number of purported medical records the Practitioner reviews.
- Telemedicine Company only furnishes items and services to Federal healthcare program beneficiaries and does not accept insurance from any other payor.
- Telemedicine Company claims to only furnish items and services to individuals who are not Federal healthcare program beneficiaries, but the Telemedicine Company may bill Federal healthcare programs.
- 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), which potentially restrict a Practitioner's treatment options to a predetermined course of treatment.
- 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., Practitioners are not required to discuss genetic testing results with each purported patient).
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