Health care fraud enforcement may have slowed initially amid the country’s battle with COVID-19, but data shows that task force activity is picking up. That’s especially true for Medicare providers in Texas and Louisiana, the only states in the U.S. with two Medicare Fraud Strike Force offices, and for providers who have transitioned some or all of their practice to telehealth during the pandemic.
So how can providers and medical businesses protect themselves during evolving and unpredictable times? The answer lies in familiarizing your practice with regulators’ common enforcement targets, and in being aware of the violations and red flags that can land providers in hot water.
Telemedicine
Telemedicine has long been a hot spot for fraud and abuse. While it has been historically subject to extensive restrictions, the expansion of Medicare telehealth coverage during the pandemic means more providers are able to offer and be reimbursed for a wider range of remote health care services.
Though telehealth has helped ease burdens created by the greatest public health crisis in over a century, regulators are still focused on fraud, and are beginning to ramp up enforcement efforts.
As the adoption of telemedicine accelerates, providers should be mindful of these enforcement actions and their own risks related to audits, investigations, and violations involving kickbacks, HIPAA, and the False Claims Act (FCA).
Regulators mining telehealth claims for red flags will be targeting several key issues:
1. Billing Patterns
Auditors and regulators will pay close attention to billing practices, including the number of patients providers see each day and the rate at which doctors provide services or treatments, in order to identify unusual of suspicious patterns. Regulators will be dissecting billing data, searching for signs of:
- Billing for services not rendered
- Billing for unnecessary services
- Fraudulent claims submitted for non-existent patients
- Billing virtual telehealth visits at a higher reimbursement rate
- Upcoding and unbundling
2. Referral Agencies
Providers who contract with patient referral agencies or third-party marketing or telemedicine companies for telehealth appointments are likely to be scrutinized for potential illegal kickbacks, or the payment of any form of remuneration in exchange for referrals.
Illegal kickback agreements may involve:
- Orders for unnecessary procedures, prescriptions, or durable medical equipment (DME)
- Agreements in which providers or telemedicine companies are paid by laboratories for COVID-19 diagnostic tests that are not medically necessary
- Orders for bundled COVID-19 and Respiratory Pathogen Panel (RPP) tests that are not medically necessary or which are ordered in exchange for remuneration
Performing due diligence to ensure arrangements do not violate anti-kickback laws, or satisfy an appropriate exception, is crucial. Providers engaged in any arrangement involving third-party marketing or telemedicine companies must also ensure they comply with their obligations to keep patient records in their possession to avoid HIPAA violations.
3. Prescriptions and DME
Many fraud cases and HIPAA violations begin with CMS being notified by a contracted auditor that a red flag has been identified involving the prescription of medications or durable medical equipment, such as orthotics and neck or back braces.
Providers in this area, including those working as independent contractors for companies or third-party marketers that arrange services, should carefully vet agreements prior to signing, and verify they have the necessary records to produce upon request.
Though there are risks associated with incorporating telemedicine into a practice, those risks can be effectively managed with proactive and insightful counsel. At Hendershot Cowart P.C., we help providers and medical businesses ensure and maintain regulatory compliance so as to harness telehealth’s potential as a valuable tool for flexibility and increased access to care during the pandemic.
Ensure Compliance to Avoid Violations—Don’t Wait for the Government to Find Them First
Hendershot Cowart P.C. leverages over a century of collective experience to help providers, telemedicine companies, and other medical businesses ensure regulatory compliance and reduce exposure to career-altering penalties.
Our attorneys have been actively counseling health care clients throughout the pandemic, and are available to provide a range of proactive and responsive services, including counsel for:
- Proactive regulatory compliance
- Billing agreements and health care compliance
- Medical contract review, drafting, and negotiation
- Management service contracts
- Physician employment and compensation agreements
- Telemedicine compliance, including COVID-19 telehealth compliance
- Health care fraud and medical license defense
- Medicare audits and COVID-19
Whether you need assistance with pending audits of fraud investigations, or would like to learn more about ensuring compliance in a health care industry that’s rapidly accelerated toward telehealth amid the pandemic, Hendershot Cowart P.C. has the experience and resources to help. Call or contact us online to speak with an attorney.
