Health Care Fraud Defense Attorneys

While telehealth has been utilized since the advent of telephones, the COVID-19 pandemic brought new importance to the practice. Telehealth allows providers to meet with patients virtually, reducing the transmission of the coronavirus and making it easier than ever for Americans to access physicians. However, this new emphasis on telehealth came with government official’s scrutiny on how it is practiced.

In Arizona, telemedicine refers to the “interactive use of audio, video or other electronic media, including asynchronous store-and-forward technologies and remote patient monitoring technologies, for the practice of health care, assessment, diagnosis, consultation or treatment and the transfer of medical data.” This includes telephone calls, but not fax, instant message, voicemail, or email. See A.R.S. §36-3601.

Last September, the Department of Justice charged 42 doctors and nurses for over $1.4 billion  in healthcare fraud. $1.1 billion of which was related to telemedicine. The Government alleges that these healthcare providers would buy expensive equipment or bill unnecessary tests to Medicare after only a brief phone call or video chat with the patient. Many of these schemes targeted unhoused and substance addicted populations, leading to further charges.

The Government can charge a provider with telemedicine fraud for a whole host of different actions. While some of these actions are obviously fraudulent, some can be the product of mistakes providers can make:

• Unnecessary tests or prescriptions: Medicare defines necessary medical services or supplies as those “needed to diagnose or treat an illness or injury, condition, disease (or its symptoms).”

• Tests: Tests should be based on patient complaints or their individualized risk factors

• Prescription: In Arizona, a provider must physically examine a patient or have an existing relationship with them before writing a prescription. This is especially true if the prescription is for a Schedule I substance.

• Up-coding for time or complexity: Billing for a more complicated or time intensive procedure that actual service rendered.
• Kickbacks: When a provider has a financial incentive to bill certain services or products under a federally funded healthcare program. This can be cash or even paid in referrals.

Seeing patients virtually or over the phone poses a new set of challenges for providers. Providers need to walk the fine line between defensive medicine and ensuring your patients get the care they need. The regulatory landscape is rapidly developing as the Government continues to crack down on fraud, so providers should stay abreast of any recent developments. The ABA White Collar Committee issued several tips for providers to ensure compliance:

• Investigate. Thoroughly check the background of any providers in your group. One providers’ unethical behavior can be imputed onto the rest within a network, so make sure to thoroughly review candidates to ensure they are not a part of kickback programs.

• Training. Create practices that comply with national standards. These standards should apply to coding and billing.
• Monitoring. Have checks in place to ensure compliance. Spotting issues early on is beneficial for training and compliance.
• Reporting. Having systems in place to report and investigate issues will deter potential fraudsters and catch any fraud before it turns into multi-million dollar issue.

Telehealth is likely here to stay. Make sure your organization stays up to date with all regulatory developments both federally and locally. If you find yourself subject to a government investigation or audit, it is important that you secure counsel with an expertise in white collar crime.

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