DOJ Telehealth Law Enforcement Action Highlights COVID Waiver Abuse


On May 26, 2021, the Department of Justice (“DOJ”) announced coordinated law enforcement action against 14 telehealth executives, physicians, traders and health care business owners for their alleged fraudulent allegations of health insurance linked to COVID-19, resulting in more than $ 143 million in false invoicing.[1] This coordinated effort highlights the scrutiny telehealth providers face as rapid expansion efforts due to industry standards shape COVID-19.

Since the start of the COVID-19 pandemic, the DOJ has prioritized the identification and prosecution of fraudulent conduct related to COVID-19, in particular with regard to the law on aid, relief and economic security from the coronavirus (“CARES”).[2] financial assistance programs. However, prior to this latest healthcare fraud withdrawal, DOJ announced relatively little enforcement activity specific to federal healthcare programs. This renewed enforcement action could trigger an increased effort by DOJ to manage pandemic-related fraud with respect to healthcare programs.

In addition to criminal charges from the DOJ, the Center for Program Integrity (“CPI”), the Centers of Medicare and Medicaid (“CMS”) separately announced penalties for more than 50 health care providers for their involvement in fraud schemes. pandemic health care fraud and abuse of CMS programs.[3] The CPI / CMS Fee in conjunction with the DOJ Healthcare Fraud Removal provides insight into current DOJ application models related to the pandemic, including:

  • Telehealth waivers: In an effort to expand patient access during the pandemic, CMS expanded the services it reimbursed for telemedicine practices while federal officials also relaxed privacy guidelines that restricted types of qualified devices to administer telehealth services. CMS has also waived deductibles and patient co-payments, which would otherwise have been interpreted as kickbacks if used for unnecessary services. The cases reported by both DOJ and CMS allegedly sought to exploit these expanded policies by submitting false claims to Medicare for telemedicine encounters that never took place. Additionally, the DOJ accused the medical professionals in these cases of allegedly accepting bribes in exchange for medically unnecessary testing recommendations.[4]

  • Pooled COVID-19 tests: In addition to filing medically unnecessary health insurance claims, DOJ has tasked defendants in these cases with bundling COVID-19 test claims with health insurance claims for additional, often more lab tests expensive, such as genetic cancer testing, allergy screens, and panel testing for respiratory pathogens. In many of these cases, these tests were medically unnecessary or not even provided to patients.[5]

  • Relief fund for providers: Recent law enforcement activity included the third criminal case in the country targeting the misuse of supplier relief funds. The CARES Act created this funding to support patients with healthcare-related expenses or lost income attributable to COVID-19. In that case, the Justice Department alleged that the owner of a home care agency had embezzled relief funds from providers for his benefit.[6]

As the DOJ’s announcement in May focused on the criminal actions of healthcare fraud related to COVID-19, we can expect the DOJ’s civilian division to do the telehealth app as well. a priority. In a February speech at the Federal Bar Association’s Qui Tam conference, Acting Assistant Attorney General Brian M. Boynton said, “I also expect the focus to be on telehealth, especially given the expansion of telehealth during the pandemic. ”[7] It is likely that the expansion of telehealth services and dispensations will result in increased costs for the Department. qui tam lawsuits filed by whistleblowers, as well as False Claims Act cases as the year progresses and the economy continues to recover from the pandemic.

[1] Press release, DOJ announces coordinated law enforcement action to tackle COVID-19 healthcare fraud, Ministry of Justice (May 26, 2021).

[2] The CARES Act, Pub. L. No. 116-136 (2020).

[3] Press release, DOJ announces coordinated law enforcement action to tackle COVID-19 healthcare fraud, Ministry of Justice (May 26, 2021).

[4] United States v. Stein et al., 1: 21-CR-20321-CMA (SD Fla. May 25, 2021).

[5] United States vs. Taylor, 2: 21-MJ-02003-MEF (WD Ark. May 21, 2021); US v. Ruis et al., 9:21-CR-80080 (SD Fla. May 24, 2021); United States vs. Clarkin, 3: 21-CR-00438 (DNJ May 24, 2021).

[6] United States v. Hannesyan, 2: 21-MJ-02562 (CD Cal. May 24, 2021).

[7] Press release, Acting Assistant Attorney General Brian M. Boynton delivers remarks at Federal Bar Association Qui Tam Conference, Ministry of Justice (February 17, 2021).

© 2021 Epstein Becker & Green, PC All rights reserved.Revue nationale de droit, volume XI, number 201

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