The Covid-19 pandemic has brought tremendous changes to the way that physicians and other medical providers practice medicine. Nowhere is this change more pronounced than in the expansion of telemedicine services. Covid-19 has forced regulators and the healthcare industry at large to refocus on limiting contagion, and with this new focus comes a growing appreciation for the benefits of telemedicine. Historically disfavored and tightly limited in its application, telemedicine has exploded onto the scene in new and innovative ways.

At the same time, Covid-19 has dramatically affected the business of many traditional brick and mortar practices, and many physicians find themselves searching for opportunities to provide services via telemedicine. While many of these opportunities are legitimate and beneficial, others are traps that can harm a participating physician in unexpected ways.

Unfortunately, the current status of telemedicine presents a perfect storm for fraud and abuse: (1) the rules governing telemedicine have radically shifted in a very short time – most practitioners do not have substantial experience with telemedicine and telemedicine rules are not widely well understood; (2) telemedicine volume has increased enormously – according to some estimates, telemedicine visits have increased twenty-three-fold from pre-pandemic levels; (3) telemedicine reimbursement and demographic changes mean that payors do not have same quality of data to easily identify outliers and potential bad actors; and (4) remote performance of services facilitates bad actors’ efforts to avoid identification and escape state and federal prosecution. These bad actors submit thousands, if not millions, of dollars in false claims to private or government payors, and then disappear, leaving their physician partners to clean up the mess with payors, the medical board, and sometimes with the FBI and DOJ.

It can be difficult to recognize when a potential business partner is engaged in improper conduct. In most instances, bad actors have a substantial advantage: They have been here before. This could be the hundredth or the thousandth time that they have pitched a fraudulent deal. Each time that the pitch fails, it is adapted to make it less likely that the fraud will be immediately detected in the future. The ultimate result of this process is a pitch and marketing materials that are carefully crafted to conceal any misconduct. In contrast, most physicians have only encountered a handful of telemedicine proposals, and as a result, are ill-equipped to see and interpret the warning signs and red flags.

Below are a number of questions and tips that can help physicians identify when a telemedicine business partner may be taking advantage of them or engaging in improper conduct:

1. Where does the money come from? Particularly, if an arrangement involves a high incidence of ordering or prescribing of an ancillary medical product, is there a financial relationship between the business partner and the recipient of the referral or order. If there is a prescription, does the patient chose where that prescription is filled or is there a dedicated pharmacy?
2. What does the interaction and relationship with the patient look like? In many instances bad actors will intentionally prevent direct interaction between patients and contracted physicians. While store and forward or asynchronous telemedicine may be appropriate in some circumstances, in other situations, this separation is an important mechanism to conceal the fact that patients either do not need or are not receiving the ordered medical product or service.
3. Checking the margins. It is important for physicians to be familiar with the products that relate to the arrangement in which they are involved. Many physicians are shocked to find that pharmaceutical products or laboratory tests that they regularly ordered are each reimbursed for thousands of dollars.
4. Know who you are working with. Just because the medicine will be remote doesn’t mean the business dealings should be. We have seen instances when fraudsters have conducted all of their business over the phone or email and taken the opportunity to fabricate non-existent legal departments, executives, and even vouching physicians. Background checks can identify some bad actors and some façade’s crumble at the first in-person meeting. If the proposal calls for working with a team of mid-level providers, it is critical to know who those are.
5. How does your partner respond to compliance concerns? You can learn a lot from how compliance concerns are received and responded to. Do they evade or deny the possibility of a problem, or are good faith efforts made to improve practices? Is there a compliance officer that you can go to with concerns? Do promised changes materialize or do the same problems persist?
6. Engage counsel. An ounce of prevention can be worth a pound of cure, and it can be incredibly helpful to have access to someone that sees a large volume and variety of problematic deals. Many times, the façade of legitimacy is easy to see through, but only if you know where to look.

If you are a physician or other medical practitioner and you feel that you may be the victim of a bad telemedicine deal, it is entirely normal to be overwhelmed. Many physicians are embarrassed when they start to suspect they may have been duped. Some hesitate to take any action, and others terminate the arrangement and simply hope that the problem will go away. But it can be very beneficial to be proactive. In most instances, if you are a victim of a bad telemedicine deal, the bad actors will have caused the submission of substantial false or fraudulent claims associated directly or indirectly with your NPI. If that is the case, payors usually will eventually identify you as a statistical outlier and will not initially appreciate your role or lack of culpability in the arrangement. They will likely make reports to the medical board (or other applicable board) and to law enforcement. The more time you have to prepare, the better you will be able to respond to eventual inquiries.

If you believe that you may be the victim of a bad telemedicine deal, please do not hesitate to contact us by phone at 469.758.4150 or via email at chris@elliottsauter.com.