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The increased use of telehealth, along with a decrease in the enforcement of existing HIPAA laws, has spawned a new wave of telehealth, particularly telemedicine fraud and abuse. The False Claims Act and other state and federal qui tam laws protect against government-funded medical insurance schemes and reimburse whistleblowers up to 30% of monies granted in associated legal actions.
Anyone making false telehealth billing claims or committing telemedicine fraud of other types is subject to stiff penalties and responsible for paying financial damages. While the Occupational Safety and Health Act (OSHA) has a history of forcing employers to post notices about the whistleblower policies, practices, and financial rewards for fraud and abuse whistleblowers, many behavioral healthcare providers work in smaller settings, where such information may not be as easily accessed. Now with digitized forms of communication, reporting telehealth fraud and abuse has never been easier.
The chaos caused by COVID and the confusion caused by the suspended enforcement of HIPAA provisions has made billing compliance an afterthought for many providers. The most recent predictions are that the telehealth industry will reach $113 billion by 2025, making it increasingly likely that providers in many settings will hear of some form of telehealth or telemedicine fraud or abuse in their professional lives.
What Is Telehealth or Telemedicine Fraud & Abuse?
The US Department of Justice has recently turned its attention to investigating telehealth and telemedicine fraud. There are several ways in which dishonest service providers manage telemedicine fraud schemes. These are a few:
- Misrepresented services – virtual consultations, telephone calls, and other remote client contacts must be accurately reported to insurers like Medicaid. Service providers must keep records of all remote transactions, including frequent mention of diagnostic billing code criteria in progress notes to justify codes used to confirm accurate telehealth billing.
- Billing for services not offered – a particularly concerning telehealth fraud scheme is telehealth billing for services from which the client received no benefit. Technological breakdowns and poor connections are a reality in remote consulting. If the breakdown is such that the client could not adequately benefit from the consultation, the healthcare provider should not charge even if they had spent time trying to provide a service. There should be no telehealth billing unless the client benefits from the transaction.
- Upcoding – possibly the most common telehealth fraud scheme; upcoding happens when the healthcare provider exaggerates service complexity or claims increased consultation time.
- Kickbacks are paid to healthcare providers for recommending or providing services that aren’t necessary. An example might be unnecessary medical devices or tests. The American Bar Association mentions the passing of the 2020 Sober Homes Initiative, described by the American Bar Association as “the very first coordinated enforcement action in DOJ history focused on broad schemes in the substance-abuse treatment industry.” In these efforts, a Health Care Fraud Unit prosecutes medical providers who feed patients’ addictions to continue billing for their “recovery.”
The DOJ also outlined what it considers “critical” compliance initiatives to be used by providers and their organizations:
- Background and Conflicts Checks: Hiring surges by telehealth, telemedicine, and telebehavioral health companies increase the risk that appropriate scrutiny is not applied to new hires. Individual rogue providers can easily shop themselves around, looking for signing bonuses and loopholes for accepting kickbacks or inappropriate referral arrangements. Hiring companies are encouraged to screen candidates for exclusion based on previous or current disciplinary and licensure issues. The DOJ also encourages them to consider comprehensive background and conflict checks.
- Training: Compliance training is a critical component of compliance. Billing and coding requirements in this area have changed. Companies and providers of all types who offer telehealth or telemedicine services will benefit from regular training to keep up-to-date not only on billing practices but also on cybersecurity to prevent evil-doers from taking advantage of innocent providers who have a lapse in judgment or do not understand how vulnerable some telehealth systems can be.
- Monitoring: Telemedicine companies and providers of all types should monitor their bills and charts for patterns and outliers. Spotting potential issues in real-time provide opportunities to evaluate and modify policies as needed.
- Reporting and Investigations: Employers should institute OSHA-approved interventions, including the whistleblower policies outlined above, for reporting and investigating suspected non-compliant behavior while protecting whistleblowers from retaliation.
Recent Telehealth or Telemedicine Fraud and Abuse Cases
The Department of Justice has been cracking down on telehealth fraud schemes in recent months, intending to reduce the amount of government income lost to telemedicine fraud. Some of the actions taken appear below:
- The National Rapid-Response Strike Force – this force of prosecutors uses technologies such as data analytics to identify telehealth fraud and abuse. It is staffed by prosecutors from across the country who use data analytics to identify and prosecute individual and corporate actors involved with health care fraud. The system has already recouped $1.4 billion in misappropriated funds. Telemedicine fraud accounts for $1.1 billion of these losses.
- Operation Rubber Stamp – this billion-dollar kickback scheme in Georgia’s Southern District saw healthcare workers receive money for prescribing unneeded healthcare devices, medicines, tests, and equipment. The items were prescribed after a short telehealth consultation. This international telemedicine fraud scheme resulted in billions of dollars lost in Medicare reimbursements and people not receiving the needed care.
- $10 million telehealth billing fraud – The DOJ showed they meant business when charging an orthopedic surgeon for $10 million in telemedicine fraud. He’d made claims for clients he had not seen or seen briefly but billed for a full consultation.
What to Do if You Know of Telehealth Fraud and Abuse
Educate yourself and your colleagues. The Internet offers many free resources. The Harvard Law School Forum on Corporate Governance offers a free paper addressing Elements of an Effective Whistleblower Hotline that may be of assistance when trying to locate a hotline to get more information. Once your basic questions are answered, locate a whistleblower legal firm to listen to the facts of the case you seek to expose. Many can be found searching any Internet search engine for “telemedicine whistleblower attorney.” Proceed with caution, and don’t sign written agreements without consulting your malpractice carrier company’s legal team for suggestions. If you are vulnerable to retaliation, seek the advice of multiple parties before signing any agreements. Consider contacting your state’s insurance commissioner’s office to ask for more reliable resources.
If your case is legitimate and the presiding court makes an award, you can claim up to 30% of the reward when you successfully blow the whistle. Health insurance fraud costs citizens by inflating healthcare premiums. Let the authorities know of any attempts to defraud Medicare, Medicaid, Tricare, or any other insurance carrier.
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