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all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
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Demand for telemedicine services skyrocketed during the pandemic. Before the pandemic, the Medicare Payment Advisory Commission estimated 134,000 beneficiaries used telemedicine services. 6 months into the pandemic, that figure topped 10.3 million.
This explosion in demand, coupled with the easing of Medicare payment rules for telehealth services, enabled a novel species of fraud. We call it “tele-fraud.”
Regulators recently nailed three Michigan doctors (and one nurse practitioner) for participating in a Medicare fraud scheme.
This scheme has many moving parts, and they all hinge on telemedicine; we’ve summarized below.
The doctors received prewritten documents from an unnamed marketing company. Telemarketers stuffed these documents with data extracted from elderly Medicare beneficiaries. The doctors received compensation for signing these documents. Signing the documents gave them access to recorded phone calls between the telemarketers and the Medicare beneficiaries, but the doctors were not obligated to listen to the calls or contact the beneficiaries.
This detail is critical, and one of the reasons why regulators dropped the hammer. The three doctors who participated in the scheme signed the orders despite evidence the orders were not medically necessary.
The nurse practitioner admitted in his guilty plea that “he signed orders for medical braces and cancer genetic testing, attesting that he had performed the assessments and verifying that the orders were reasonably and medically necessary, when, in fact, he typically executed the orders without reviewing the records.”
Hard to come back from that one.
The telemarketing company then sold the signed documents to medical equipment manufacturers and genetic testing laboratories. These entities billed Medicare for the braces and genetic tests and listed the Michigan doctors as the referring providers.
This added up to $7.3 million in false claims.
The investigation that brought this scheme to light is known as “Operation Happy Clickers.” It is one of several federal crackdowns on telemedicine fraud. The three doctors settled their respective cases and paid a fine; the nurse practitioner pled guilty to a criminal charge of making a false statement. Fines ranged from $28,000 to over $300,000.
At the start of the pandemic, the federal government eased Medicare payment rules specific to telehealth services. Some expressed concerns that easing the rules would enable fraudsters. In this case, those concerns proved prophetic.
So, investigations like Operation Happy Clickers are bringing the bad actors to justice. That’s good.
But let’s answer the question we’re all asking ourselves: What are the chances a regular, law-abiding doctor becomes the subject of an investigation because of an honest mistake?
Provided you mind details (and don’t sign up for any fraud schemes), the risks are low. But telemedicine presents novel risks because the technology is relatively new. Doctors (even seasoned doctors) make mistakes when caring for patients in new ways. To echo an example described in one of our sources…
“…under COVID-19 pandemic emergency rule waivers, physicians are allowed to bill Medicare for telehealth visits with patients they hadn’t previously seen in person. So, they should take common-sense precautions. “Use your doctor brain: ‘Can I properly evaluate this patient for whatever the clinical issue is via telehealth?’ ” advised Ty Howard, a former federal prosecutor who is with Bradley Arant Boult Cummings. He defends physicians in regulatory actions. “If you have questions about that, that’s a big red flag.”
We repeat ourselves: Details are important. Billing a patient for a video conference (when you just spoke to them over the phone) can be a problem. Regulators are unlikely to target doctors for one-off mistakes, but those who make a habit of mislabeling these consults risk penalties. The virtual nature of telemedicine makes it easier for practices to accidentally bill patients for a more robust service than was provided.
“The feds may start examining illegal telehealth practices, such as billing for more services than were actually provided, billing for services that were not provided, or inappropriately upcoding services. “If you do a general video consult but bill for something more complex, that’s classic upcoding, and that’s where we’re most likely to see fraud claims in the future,” said Miranda Hooker, a former federal prosecutor at Troutman Pepper in Boston who defends clients accused of healthcare fraud. “Also, if you bill for a video consult when it’s actually a phone consult, that’s technically a false claim.”
Most doctors would never intentionally overbill a patient, but those who rely upon electronic health record systems to manage tasks (like billing) may overcharge a patient in error. Some businesses operating in the health IT space claim they can “dramatically increase” a doctor’s reimbursement. This is sometimes accomplished via algorithms programmed to “upcode” certain procedures – such as telehealth services.
Telehealth violations fly under the radar because doctors and patients are rarely in the same space. Potential whistleblowers (nurses, staff, other providers) are usually absent, so if doctors are gaming the system, their actions go unreported.
This isn’t to say doctors can’t trust these companies. But they should seek legal counsel before partnering with them.
The moral of the story: Mind your documentation and billing practices in all things, and especially telehealth services. The virtual nature of care enables accidental billing errors and deliberate fraud.
So long as providers don’t treat telemedicine like an easy button to fortune, they should practice with peace of mind.
What do you think? Let us know in the comments below.
Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
Theme song from 70,s TV Beretta: “Don’t do the crime, if you can’t do the time, yeah…don’t do it…”
We wonder how some physicians, who are mostly in the 95%-income percentile get ensnared in get-rich quick schemes that seem to be so obviously a foolish idea. How could they be so naïve as to think that their plan will not be noticed as an outlier based upon their income comparison to other doctors close by?
I was a Medicare Chart auditor as part of my officer membership in my State Association. I was also chair of our “Insurance Committee.” You would think doctors would realize that there are incredible data stores on you and your medical practice and that outliers of almost any nature can easily be generated by a computer search. I know there are some doctors who actually earn very high incomes. But they are very rare and mostly in academia or administrative positions with large Pharma corporations.
Some physicians don’t understand “Safe Harbor” laws and what will happen to them if they try to go against these regulations. I think that State and Federal practice associations are derelict in their obligations to their members if they do not openly discuss this and educate their members. I regarded this as my primary obligation when I was Chair of the Insurance Committee of the Washington State Podiatric Medical Association. Now that I am retired, I hope that the newer incantation in that role will fill the gap I left.
Readers of Medical Justice are smart, perhaps beyond their initial realization to become paying members. Your life is short. Failure to be “aware” has a very high price.
Michael M. Rosenblatt, DPM