Last week, Acting Assistant Attorney General Brian C. Rabbitt delivered remarks to lawyers at an annual conference in Washington, D.C. While the remarks included the Justice Department’s annual boasting of significant prosecutions over the past year, there was also an ominous warning to healthcare providers. In Rabbitt’s words, “This year alone our healthcare fraud prosecutors have publicly charged over 70 people, including doctors and other healthcare professionals. … I anticipate this figure will grow significantly before year’s end.” Given the increased scrutiny of healthcare generally, and telemedicine specifically, practitioners would be well-served to take prudent measures now to be prepared when the government asks questions.
Nowhere has the government been more aggressive in tackling perceived healthcare fraud than in the telemedicine space. Seemingly weekly, the government announces new telemedicine-related charges, painting the industry with a broad brush. For example, last week, a Dallas physician pled guilty to obstruction of justice related to misstatements concerning her use of telemedicine in prescribing durable medical equipment and compound pharmacy prescriptions. In the press release touting the settlement, the Justice Department noted that, due to “a surge in claims,” prosecutors were initiating “investigations into telemedicine fraud targeting federal insurers, including TRICARE, CHAMPVA, and Medicare.” Similarly, the press release noted that “[f]raudulent telemedicine schemes not only expose beneficiaries to potential harm, but also waste valuable taxpayer dollars.”
Similarly, in districts from Florida to South Carolina to New Jersey, prosecutors have taken aim at seemingly suspect telemedicine practices. While the features of the individual cases vary, the government’s focus on suspect telemedicine practices have primarily included some or all of the following attributes:
Given the government’s statement that more prosecutions are forthcoming, practitioners would be well-served by being mindful of these risks. As a practice group that has successfully defended a number of these cases across the country, we can share a few of our most practical tips for practitioners worried about possible government scrutiny.
While telemedicine offers so much potential, there remains considerable risk. There has never been a more important time to ensure that, while you take advantage of promising new medical technologies, you do so lawfully and compliantly.