News & Events

Telemedicine Fraud During the Pandemic and Beyond

THIS BRIEFING IS BROUGHT TO YOU BY THE AMERICAN HEALTH LAW ASSOCIATION’S (AHLA) FRAUD AND ABUSE PRACTICE GROUP.

The adoption of telemedicine by health care providers has been accelerated throughout the COVID-19 pandemic, and a concerted effort on behalf of federal and state regulators to ensure access to medical care has either relaxed or suspended prior telemedicine requirements while increasing the breadth of reimbursement for telemedicine services. A push by legislators and health care providers has been made—and will continue to be made—to further expand telemedicine coverage by making permanent certain pandemic telemedicine waivers. The impact of these laxer restrictions may create conditions susceptible to fraud and abuse, and recent enforcement by the Department of Justice (DOJ) indicates telemedicine will be increasingly monitored in the post-pandemic world.

Loosening of Telemedicine Requirements

Prior to the pandemic, reimbursement for telehealth[1] services was relatively limited, available only to certain practitioners[2] providing specific services approved to be furnished via telehealth,[3] usually to patients in rural areas at “originating sites.”[4] Following the declaration of a public health emergency, these limitations were upended through passage of the Coronavirus Preparedness and Response Supplemental Appropriations Act[5] and the Coronavirus Aid, Relief and Economic Security Act,[6] which granted the Centers for Medicare & Medicaid Services (CMS) authority to broaden its telehealth coverage pursuant to Section 1135 waivers.[7] CMS quickly expanded reimbursement for telehealth services to additional practitioners and certain audio-only telehealth services, and suspended limitations as to where a patient could receive telemedicine.[8] Medicare licensing requirements for out-of-state practitioners were essentially waived,[9] and increased flexibility regarding physician supervision provided via interactive telecommunications technology was given.[10] The Department of Health and Human Services (HHS) also announced a policy of “enforcement discretion” for Medicare telehealth services furnished pursuant to the Section 1135 waivers, further encouraging the adoption of telehealth and telemedicine amongst providers.[11]

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