Doctors who have gotten used to virtual patient checkups should be wary of changing telehealth rules that could open the door for fraud when the pandemic ends, attorneys warn.
While federal health regulators have waived some telehealth rules to make it easier for doctors to treat patients without running the risk of spreading Covid-19, those tweaks are only temporary. Doctors billing Medicare and Medicaid for telehealth visits could violate fraud laws if they continue to rely on those waivers when the crisis is over.
“If the provider knew or should have known the rules, which as we know are difficult to keep up with, the provider could be significantly penalized or even face criminal consequences,” said Sean Sullivan, a health-care attorney at Alston & Bird LLP in Atlanta.
Others may take advantage of telehealth’s expansion, seeing it “as an opportunity to misuse it and make a quick buck,” Patricia Carreiro, an attorney with a focus on cybersecurity and data privacy at Carlton Fields P.A. in Miami, said.
The False Claims Act bars companies from intentionally making or filing false claims that defraud a government program like Medicare and Medicaid.
Expired Waivers Spur False Claims
There could be more false claims infractions, depending on which eased telehealth standards last after the pandemic. Congress and federal health regulators have debated permanently extending the waivers allowing doctors to collect Medicare and Medicaid reimbursements for seeing patients no matter where they live. Previously, those payments were only allowed for doctors treating patients in rural areas.
Since March, the Centers for Medicare & Medicaid Services has paid telehealth costs for office, hospital, and other visits.
That has been a top concern for lawmakers and health regulators, Sullivan said.
“If the originating site requirement is put back on the table, that could mean every future claim that telehealth providers submit to Medicare for services in urban environments or in the patient’s home may no longer meet that originating site requirement, and all of a sudden could be considered a false claim,” he said.
Looking beyond the pandemic, lawmakers have said that physicians should be reimbursed for telehealth regardless of the patient’s location.
Waived Copays, Deductibles
After the pandemic, false claims concerns could also come up under the Beneficiary Inducement statute, which prohibits health-care providers from supplying free or discounted items or services to a Medicare or Medicaid beneficiary.
“One of the things that HHS’ inspector general’s office did at the beginning of this pandemic was to waive enforcement of this statute for telehealth providers that are waiving or reducing copays or deductibles for their beneficiaries,” Sullivan said.
By waiving this provision, patients may seek some reimbursable services from a particular provider, he added.
There will more than likely be an influx of false claims activity after the public health emergency expires, according to Erin Hoyle, an attorney with a focus on False Claims Act defense at Carlton Fields PA.
“Bursts of False Claims Act enforcement actions typically follow times of crisis. I don’t expect the Covid-19 pandemic to be any different,” Hoyle said. She added that the Department of Justice committed to fighting Covid-19 related fraud early on, and that enforcement activities have already been underway.
“False claims involving telemedicine during and after the pandemic will likely have the same hallmarks of other common healthcare fraud schemes—illegal kickbacks, deceiving vulnerable consumers, and unnecessary prescriptions, testing, or medical devices,” Hoyle said.