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Legal Corner
OIG Special Fraud Alert: Seven Suspect Characteristics of Fraudulent Telemedicine Arrangements
Kathleen A. Westfall, Esq. | Kerr, Russell and Weber, PLC
It is no surprise that the use of telemedicine as a means of providing patients with access to medical care has increased significantly in recent years. Likewise, the number of telemedi- cine companies offering a broad range of health care items and services through physician and nonphysician practitioners has also increased significantly. On July 20, 2022, the United States Department of Health and Human Services Office of Inspector General (“OIG”) issued a Special Fraud Alert (“Alert”) warning physicians and other practitioners to exercise caution when entering into arrangements with telemedicine companies.
The Alert is in response to dozens of OIG investigations of fraud schemes involving telemedicine and other companies that purported to provide telemedicine, telehealth, or telemarket- ing services. Although the fraud schemes vary in design and operation and involve a wide range of different individuals and types of entities, the Alert explains that one common element of the schemes is the way the telemedicine companies have used kickbacks to reward physicians and nonphysicians (collectively, “Practitioners”) to further the fraud schemes. Specifically, the telemedicine companies will generally arrange with Practi- tioners to order or prescribe medically unnecessary items and services for individuals who are solicited and recruited by tele- medicine companies. Often, the Practitioners are paid to order or prescribe items or services (1) to patients with whom the Practitioners have limited, if any, interaction, and (2) without regard to medical necessity.
To assist Practitioners, the Alert identifies a list of seven “sus- pect characteristics” related to Practitioner arrangements with telemedicine companies which could suggest an arrangement that presents a heightened risk of fraud and abuse, as follows:
(1) The purported patients for whom the Practitioner orders or prescribes items or services were identified or recruit- ed by the telemedicine company, telemarketing compa- ny, sales agent, recruiter, call center, health fair, and/or through internet, television, or social media advertising for free or low out-of-pocket cost items or services.
(2) The Practitioner does not have sufficient contact
with or information from the purported patient to meaningfully assess the medical necessity of the items or services ordered or prescribed. The Alert provides as an example a telemedicine company that requires the Practitioner to use audio-only technology to facilitate an engagement with purported patients, regardless of their preference, and does not provide the Practitioner with other telehealth modalities. The Practitioner may also receive from the telemedicine company purported “medical records” that reflect only cursory patient demographic information or a medical history that appears to be a template but does not provide sufficient clinical information to inform the Practitioner’s medical decision-making.
*Kathleen A. Westfall is a member of Kerr, Russell and Weber, PLC. Her practice focuses on health care and insurance. Mrs. Westfall acknowledges the contribution of Amanda M. Pierzynski, an associate attorney of Kerr Russell, to this article. For more information about this article, Mrs. Westfall may be contacted at (313) 961-0200, kwestfall@kerr- russell.com. This publication is furnished for informational purposes only, and receipt hereof does not establish an attorney-client relationship. It does not communicate legal advice by the Wayne County Medical Society, Mrs. Westfall, Ms. Pierzynski or Kerr Russell. © 2022 Kerr, Russell and Weber, PLC
18 Detroit Medical News Third Quarter 2022