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Law360 (May 8, 2020, 3:23 PM EDT) --
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| Stephen Lee |
Enhanced Oversight of COVID-19 Opportunism
Providers should be careful to avoid opportunistic behavior that the government is now focusing on. Law enforcement officials have issued multiple warnings to the public about scams based on fake COVID-19 cures, price-gouging and efforts to get personal information, and have asked the public to report problems in these regards. This has led to multiple cases throughout the country.
- A doctor in suburban Detroit charged on April 24 in connection with billing vitamin C infusions as a treatment for COVID-19.
- A doctor in San Diego charged on April 16 with trying to sell a "miracle cure" that would cure COVID-19 "100%" and make patients "immune for at least 6 weeks."
- An actor in Southern California charged on March 25 with fraudulently soliciting funds for a company that claimed to have a developed a cure for COVID-19.
- A Georgia man charged on April 10 with making false statements claiming to secure huge orders for personal protective equipment that would have been impossible for him to fulfill.
- A Georgia marketer arrested on March 30 for seeking kickbacks for bundling a COVID-19 test with other tests for which he was paid on a per-test basis.
- A Brooklyn man arrested on March 30 for lying to federal agents to conceal his accumulating large quantities of personal protective equipment and his selling of PPE to individuals.
Some of these cases are very different from the typical health care fraud case as they seem to have arisen from patient complaints or specific targeting rather than from data mining or whistleblowers. They are likely to be prosecuted more quickly because of the need to protect the public.
Some are not technically "health care fraud" under federal law because nothing is billed to Medicare, Medicaid or a health care benefit program, though they can still be prosecuted under wire fraud and mail fraud statutes. And these cases are more likely to trigger sentencing enhancements based on patient harm, which often do not come up in typical health care fraud cases where patients actually might benefit somewhat from falsely billed care.
Future Oversight of High-Risk Areas That Are Expanding Because of COVID-19
Providers should keep up to date with changing Medicare regulations and guidance, particularly when it comes to home health and telehealth. Those two areas were connected to widespread fraud before COVID-19. Now that the pandemic has led to an expansion of home health and telehealth, providers can expect those billings to face even greater scrutiny in the future.
Before COVID-19, many nursing agencies were defrauding Medicare by billing weekly routine checkups for senior citizens that could cost Medicare $1,000 or more a month; Medicare regulations cover home health nursing services only when the patients are "confined to the home" as per a multipart definition and when the patients actually need skilled nursing services.
Medicare has clarified that many Medicare beneficiaries who ordinarily would not be considered "confined to the home" now might be because of COVID-19, but providers still need to follow the rules regarding necessity. This is especially important now as unnecessary home visits could actually cause harm to patients by potentially spreading COVID-19, not just the financial harm that home health fraud usually involves.
Before COVID-19, telehealth services had been linked to some large-scale fraud schemes, such as companies that sent expensive braces to patients who did not need such equipment, using telemarketers to find the patients and doctors to provide some semblance of legitimacy for such equipment. Providers who start using telehealth now should make sure that they understand the rules regarding telehealth and that they treat any new telehealth patients in ways similar to how they would treat the patients they see in person.
Future Scrutiny of Trends in Billing Data
Providers should keep in mind that the government will eventually look back at their billing for signs of fraud. Health care providers are making changes in how they deliver services given COVID-19, and many providers are delaying services that some patients might ordinarily get. That should be reflected in data, with significant drops or changes in providers' data for 2020. By contrast, if a provider's data does not show any changes, or if a provider's data shows a significant increase in billings, that may draw scrutiny in the future.
Bernie Madoff's Ponzi scheme collapsed in part because he kept showing gains when everyone else suffered losses. Similarly, if every other provider in a specialty or area is billing less or suffering losses, the provider who does not will stand out.
Accordingly, this is a great time for providers to take a close look at any services where the necessity might be questionable or any services that are billed automatically. One common flag for health care fraud is when a provider bills for services that supposedly happened after a patient had actually died. Similar flags will emerge from COVID-19, such as a provider who bills for large numbers of services that can only be delivered in person when patients are actually staying home pursuant to stay-at-home orders, or a provider who suddenly starts billing a huge number of complicated office visits based on what actually are short telephone check-in calls.
It is also a great time for providers to make sure that their record-keeping is up to date and accurate. Many providers use templates for electronic medical records, which can be helpful in ordinary times but which can lead to problems. Providers should make sure that each record accurately reflects what they actually did and saw during each patient encounter (not just what typically would happen or what should have happened), and they may want to make changes to their templates in these unusual times. Any inaccuracy could be interpreted as a sign of fraud — devoting a little extra time now to filling out a chart can avoid problems later.
Enhanced Scrutiny of Statements to Law Enforcement
Providers should always use caution when speaking to law enforcement. Some of the COVID-19 cases that already have been charged appear to involve people who agreed to talk to law enforcement and then gave false statements during those exchanges. Providers should be careful when agents call and should consider politely asking to reschedule for a time when they can have counsel present.
Providers also should not make blanket statements claiming to have greater knowledge than they actually do, especially given all the actual confusion and misinformation about COVID-19 and Medicare's own rules. Saying "I don't know" or "I may have made a mistake" is hard for anyone, especially for a medical professional, but truthfully acknowledging this can help avoid or mitigate problems later.
Enhanced Scrutiny of Waived Copayments
Providers should consider implementing or revising policies regarding copayments and deductibles. The routine waiver of copayments is a huge red flag for fraud, and it can even be a violation of the Anti-Kickback Statute in and of itself. Now, as many patients face unexpected financial burdens, providers can and should consider carefully documenting any waiver of co-payments to avoid scrutiny in the future.
As the COVID-19 crisis continues, health care fraud enforcement probably will focus on the worst offenders for the foreseeable future. Providers can avoid trouble now by being careful what they say about COVID-19 to their patients, and they can avoid trouble later by adjusting their practices to stand up to increased scrutiny.
Stephen Chahn Lee is a litigation partner at Benesch and former senior counsel to the U.S. Attorney's Office for the Northern District of Illinois' health care fraud unit.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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