Medicare Compliance & Reimbursement

Documentation backs up telemedicine claims.

The convenience of offering clinical services electronically is a great option for your patients, but telemedicine has its drawbacks, too. In fact, a recent case suggests the feds aren’t playing any games when it comes to proving medical necessity for clinical care provided electronically.

Context: Last month, the Department of Justice (DOJ), in collaboration with the Department of Health and Human Services (HHS), and the Federal Bureau of Investigation (FBI), charged 24 defendants, including three licensed clinicians, for Medicare abuse and fraud. Five telemedicine firms, 130 durable medical equipment (DME) companies, and medical professionals concocted a scheme using telemedicine to defraud Medicare upwards of $1.2 billion.

The involved parties employed a plethora of tactics to trick patients and commit Medicare fraud, the DOJ report reveals. These included:

• Using international call centers to mine for vulnerable Medicare beneficiaries to sell free or low-cost DME products to.
• Bribing and giving kickbacks to telemedicine firms to arrange the DME orders.
• Paying physicians to write up medically unnecessary DME claims after conducting short visits via telemedicine, or even worse, write up claims without speaking with beneficiaries at all.
• Selling the DME orders garnered from the »telemedicine firms to DME companies, which then fraudulently billed Medicare.

“These defendants — who range from corporate executives to medical professionals — allegedly participated in an expansive and sophisticated fraud to exploit telemedicine technology meant for patients otherwise unable to access health care,” explains Brian A. Benczkowski, DOJ Criminal Division assistant attorney general, in a brief on the case.

DOJ in conjunction with the Medicare Fraud Strike Force are taking the lead on these enforcement activities and working closely with officials in New Jersey, the middle district of Florida, and South Carolina as well as the Internal Revenue Service (IRS) to settle the case. However, individuals charged in the case reside or practice in other areas of the United States, too, and impact the following states: California, Florida, Missouri, Nebraska, New Jersey, North Carolina, Pennsylvania, South Carolina, Texas, and Washington.

Note to providers: The DOJ appears to still be investigating other avenues related to the case. “Any doctors or medical professionals who have been involved with alleged fraudulent telemedicine and DME marketing schemes — including Video Doctor USA, AffordADoc, Web Doctors Plus, Integrated Support Plus, and First Care MD — should call to report this conduct to the FBI hotline at 1-800-CALL-FBI,” offers the release.

Seek Guidance Before You Enter Into a Telehealth Arrangement

Before you embark on a business partnership with a telehealth vendor, you may want to seek legal assistance to determine the logistics of how you’re going to conduct telemedicine at your office. “Telehealth arrangements can be quite complex and require a review by competent healthcare counsel,” advises attorney John E. Morrone, a partner at Frier Levitt Attorneys at Law in New York City.

“Two critical elements of any telehealth analysis are, (i) does the communication between the physician and the patient comport with applicable state law; and (ii) how is the physician being compensated,” Morrone says.

Caution: Not all telehealth and telemedicine companies are the same, as evidenced by the DOJ case. That’s why it’s essential to investigate your business associates before you enter into a contract. “If the physician is not billing the patient or the patient’s insurance the arrangement is likely suspect,” Morrone warns.

“Another red flag occurs if the undue pressure is placed on the physician to approve prescriptions or write orders for other ancillary services,” he adds. “No arrangement should be structured to inappropriately influence the independent clinical judgement of the physician.”

Tip: Before you sign on the dotted line with a telehealth company, consider your dealings with your other business associates like your EHR vendor. “Providers that would like to engage in telehealth need to evaluate the experience of the EHR vendor especially as it relates to their compliance programs. Special attention must be paid to HIPAA and patient privacy issues,” indicates Morrone. “Many vendors inappropriately collect and sell patient data.”

Medicare billing: Depending on the nature of the telehealth service and the clinical care administered telemedically, CMS may not cover the outcomes.

“The key to compliance with Medicare rules is to evaluate the Medicare billing requirements for a bona fide telehealth encounter with the proposed arrangement from the telehealth company,” Morrone says. “It is very common for healthcare services to comport with applicable state law but not be reimbursable by Medicare.”

He adds, “A telehealth encounter may be perfectly acceptable under state law, and even billable to commercial carriers, but not be billable to Medicare.”

Resource: Read all the DOJ details about this billion-dollar case at www.justice.gov/opa/pr/federal-indictments-and-law-enforcement-actions-one-largest-health-care-fraud-schemes.