Amy Lerman, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in Health Evolution, in “Coming Soon: Government Enforcement Agencies Increasing Focus on Telehealth Fraud,” by Gabriel Perna.

Following is an excerpt:

Thanks to the COVID-19 pandemic, telehealth usage significantly increased across the country in 2020. More doctors found it to be an acceptable way to connect with their patients and incentives finally lined up with the technology’s capabilities, as CMS and private payers temporarily offered flexible reimbursement and cross-state licensure.

For those reasons, the October announcement by the Department of Justice that it was charging 86 defendants with telehealth fraud should not have surprised anyone in the industry. …

The DOJ, along with Health and Human Services’ Office of the Inspector General (OIG) and other agencies, charged 86 defendants with $4.5 billion in telehealth fraud. The charges allege telemedicine executives paid doctors and nurse practitioners to order unnecessary durable medical equipment, genetic and other diagnostic testing, and pain medications, either without any patient interaction or with only a brief telephonic conversation with patients they had never met or seen.

This is only the beginning of the enforcement, says Amy Lerman, who is with the Health Care and Life Sciences practice at Epstein Becker Green. “The OIGs, the DOJs of the world, they’re looking now. They know a lot better than they did 2-3 years ago what to look for, the schemes that are being run,” says Lerman, who predicts regulators will focus on the type of kickback ploys that came up in the October bust. She also wouldn’t be surprised if they examine other potential areas of vulnerability to fraud.

“Payers and government entities are really looking very closely because there’s such an uptick in telemedicine services. They’re looking for the ways that people may not be doing the billing and collection aspect of their business correctly,” she says.

No mistake goes unnoticed …

Lerman, who counsels health care organizations on regulatory matters related to telehealth, agrees with the notion that federal watchdogs are closely investigating billing and documentation in virtual health. They’re also looking at consent as it relates to telehealth, she says.

“There are rules and laws in every state around patients consenting to receiving health care services. How is consent being handled in a virtual environment? Are telemedicine providers making it clear patients have to give their consent first? Are they following laws in different states around how that consent must be?” Lerman says.

Finding fraud in a complex environment

The challenge for telehealth providers, especially those working in different regions, is that while there are federal privacy and security laws, most compliance is regulated at the state level. And then depending on the type of telehealth care a provider is offering, different areas of medicine have different rules and regulations both within and across state lines. Of course, this was all true before COVID-19, but the pandemic has made this regulatory landscape even more complex.

“COVID has prompted some of the bigger changes we’ve seen to well-established law. Thinking ahead if I had a crystal ball, we’re going to see states say, ‘Wow this worked well during COVID. Let’s make it more permanent.’ It’s a potential catalyst to what we’re going to see in the years to come,” says Lerman.

In October, Lerman’s firm released its annual “Telemental Health Laws survey,” which looks at state telehealth laws, regulations, and policies. The survey found that half of the states have data privacy/confidentiality laws, regulations, or guidance specific to the provision of telehealth services that generally go above and beyond requiring health care providers merely to follow federal and state privacy/confidentiality requirements pertaining to medicine.

For more information and to read our analysis of regulatory requirements for professional mental/behavioral health practitioners and stakeholders seeking to provide telehealth-focused services, please see our Executive Summary and the firm’s press release, and download the complimentary app ꟷ available for iPhoneiPad, and Android devices.

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