With its latest announcement this week of a criminal crackdown of 21 defendants for their alleged participation in various health care related fraud schemes, DOJ has underscored its commitment to aggressively pursue individuals and companies alleged to have exploited the COVID-19 pandemic. Among these actions are a collection involving alleged billing fraud arising from COVID testing; one set of defendants is alleged to have taken the data from patients seeking COVID tests and submitting bills to the federal healthcare programs for office visits that never occurred, while another set of actions involve obtaining patient samples and then billing for more expensive lab tests. Still others involve defendants alleged to have sold fake COVID vaccination cards.
In addition to pursuing this type of garden-variety healthcare fraud, DOJ’s most recent charges reflect a continued pursuit of claims against providers perceived to have abused CMS’s waivers of certain telehealth coverage and reimbursement requirements to enable expanded access to care during the public health emergency. According to one of the indictments, the defendant medical professional took advantage of these waivers by billing for sham telehealth encounters that did not occur and agreeing to order medically unnecessary genetic testing and DME in exchange for referrals of patients. Among other things, the defendant allegedly signed orders for genetic tests and DME based solely on brief telephonic conversations with the beneficiary, or none at all. In exchange for these orders, the defendant received kickbacks in the form of sham consultation fees, beneficiary referrals, and the opportunity to bill Medicare for telehealth visits under the more flexible telehealth waivers. Another defendant is already serving time for his involvement in this same scheme.
This week’s indictment comes on the heels of DOJ’s announcement (discussed here) of one of its first civil settlements under the FCA that involved the abuse of the telehealth waivers. We expect to continue to see both criminal and civil enforcement against providers who are perceived to have abused the pandemic regulatory waivers, including related to the expansion of reimbursement for telehealth services.
A copy of the indictment is available here.
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