OIG Defends Recent Telehealth Audits, Recognizes Telefraud Challenges

Federal authorities are cracking down on telehealth fraud and misuse during the coronavirus pandemic, and that has the attention of advocates who worry that connected health may be getting a bad rap in some circles.

Last week the Health and Human Services Department’s Office of the Inspector General (OIG) issued a letter recognizing the value of telehealth during the COVID-19 public health emergency, and pointing out that with increased use and value comes increased scrutiny.

“It is important that new policies and technologies with potential to improve care and enhance convenience achieve these goals and are not compromised by fraud, abuse, or misuse,” HHS-OIG Principal Deputy Inspector General Christi Grimm said in the letter. “OIG is conducting significant oversight work assessing telehealth services during the public health emergency. Once complete, these reviews will provide objective findings and recommendations that can further inform policymakers and other stakeholders considering what telehealth flexibilities should be permanent. This work can help ensure the potential benefits of telehealth are realized for patients, providers, and HHS programs.”

In a sense, Grimm’s letter serves to justify the government’s recent efforts targeting healthcare fraud, pointing out that telehealth has become so valuable during the COVID-19 public health emergency that it’s finding its way into more schemes.

But the rapid adoption of telehealth has also put pressure on healthcare providers who may have rushed into the space without fully knowing what they can and can’t do.

According to Nathaniel Lacktman, a partner with Foley & Lardner and chair of the firm’s Telemedicine & Digital Health Industry Team, and Rachel Goodman, senior counsel with the firm, the OIG is conducting at least seven different audits, evaluations and inspections of telehealth programs that receive Medicare and Medicaid support.

“The PHE triggered rapid growth in telemedicine, remote patient monitoring, and other virtual care services for many healthcare organizations,” Lacktman and Goodman said in a recent Health Care Law Today blog. “Some organizations were better prepared to scale than others, and now is a wise time to consider an internal operational review, particularly in light of the OIG’s robust audits.”

“For example, companies that started billing Medicare for the first time during the PHE could benefit from conducting a self-assessment to evaluate if sufficient compliance safeguards are in place (e.g., does the company have a compliance program, does the company have proper HIPAA policies, does the company understand and comply with Medicare billing rules, are the contracts compliance with fraud and abuse laws, etc.),” they wrote. “And established organizations that recently expanded into new geographic areas can review issues such as enrollment and interjurisdictional claim submission, state clinician licensing and exceptions, and Drug Enforcement Administration (DEA) registration requirements.”

But Grimm also pointed out in her letter that these recent audits are separate from the department’s past high-profile efforts to combat schemes that might mention telehealth but aren’t really about it.

“We are aware of concerns raised regarding enforcement actions related to ‘telefraud’ schemes, and it is important to distinguish those schemes from telehealth fraud,” she said. “In the last few years, OIG has conducted several large investigations of fraud schemes that inappropriately leveraged the reach of telemarketing schemes in combination with unscrupulous doctors conducting sham remote visits to increase the size and scale of the perpetrator's criminal operations. In many cases, the criminals did not bill for the sham telehealth visit. Instead, the perpetrators billed fraudulently for other items or services, like durable medical equipment or genetic tests.”

“We will continue to vigilantly pursue these ‘telefraud’ schemes and monitor the evolution of scams that may relate to telehealth,” she concluded.

That drew support from the American Telemedicine Association and the Alliance for Connected Care, two organizations that have gone to great lengths to highlight the separation between fraud schemes that reference telehealth and telehealth fraud.

The ACC, in fact, had sent a letter to Grimm about a month ago asking her to be more clear about the difference between telehealth fraud and telefraud.

“(P)revious OIG and DOI investigations that are identified as ‘telehealth’ were not actually related to telehealth,” the February 9 letter, written by Executive Director Krista Drobac, pointed out. “They were investigations of traditional fraud masquerading as telehealth.”

“These schemes focused on durable medical equipment (DME), compounding pharmacy, opioids, diagnostic tests and other areas – rather than false claims related to virtual treatment of a patient. These schemes also took place before the Medicare restrictions on telehealth were lifted, and to the extent these criminals used real telehealth tools, the telehealth was the means to the end, not the source of the fraud itself.”

The ATA also weighed in on the issue.

“The ATA appreciates the HHS Office of Inspector General for their fair-minded statement about the healthcare challenges the COVID-19 public health emergency created, the importance of telehealth in delivering safe, effective care to patients wherever and whenever needed, and the future role of telehealth and remote monitoring for improving care coordination and health outcomes,” ATA CEO Ann Mond Johnson – who has long raised concerns about how telehealth is used in fraud schemes – said in a press release. “The OIG also rightly points out the need to differentiate ‘telefraud’ and telemarketing schemes and legitimate telehealth services. This is a critical message from the OIG, to address confusion and allay concerns around the safety and effectiveness of telehealth.”

“Moving forward, the ATA stands ready to work with OIG and other government agencies to ensure that telehealth services continue to delivery safe, quality and convenient care, and that telehealth becomes permanently available as part of a two-channel care delivery system that balances in-person and virtual care,” Johnson concluded. “We must protect the taxpayer from healthcare fraud while ensuring Medicare beneficiaries maintain access to high-quality virtual care.”