Last week, Acting Assistant Attorney General Brian C. Rabbitt delivered remarks to lawyers at an annual conference in Washington, D.C. While the remarks included the Justice Department’s annual boasting of significant prosecutions over the past year, there was also an ominous warning to healthcare providers. In Rabbitt’s words, “This year alone our healthcare fraud prosecutors have publicly charged over 70 people, including doctors and other healthcare professionals.  … I anticipate this figure will grow significantly before year’s end.” Given the increased scrutiny of healthcare generally, and telemedicine specifically, practitioners would be well-served to take prudent measures now to be prepared when the government asks questions.    

Nowhere has the government been more aggressive in tackling perceived healthcare fraud than in the telemedicine space. Seemingly weekly, the government announces new telemedicine-related charges, painting the industry with a broad brush. For example, last week, a Dallas physician pled guilty to obstruction of justice related to misstatements concerning her use of telemedicine in prescribing durable medical equipment and compound pharmacy prescriptions. In the press release touting the settlement, the Justice Department noted that, due to “a surge in claims,” prosecutors were initiating “investigations into telemedicine fraud targeting federal insurers, including TRICARE, CHAMPVA, and Medicare.” Similarly, the press release noted that “[f]raudulent telemedicine schemes not only expose beneficiaries to potential harm, but also waste valuable taxpayer dollars.”

Similarly, in districts from Florida to South Carolina to New Jersey, prosecutors have taken aim at seemingly suspect telemedicine practices. While the features of the individual cases vary, the government’s focus on suspect telemedicine practices have primarily included some or all of the following attributes:

• Large number of orders for durable medical equipment, prescription medications, and diagnostic tests/orders;
• Large number of patient visits in a short time, including where the visits are less than a few minutes in length;
• Telehealth visits where all patients receive the same orders/prescriptions; and
• Telehealth visits where all patients receive some type of order.

Given the government’s statement that more prosecutions are forthcoming, practitioners would be well-served by being mindful of these risks. As a practice group that has successfully defended a number of these cases across the country, we can share a few of our most practical tips for practitioners worried about possible government scrutiny.

• It is never too late to make sure that your documentation is in order and in compliance. While documentation needs to be contemporaneous — and while you will cause more harm than good if you alter documentation now — you should at least know where your materials are stored and make sure that they are accessible in case the government has questions. We have seen, from first-hand perspective, that the difference between those clients that are charged and those that are not charged is the ability to timely produce fulsome documentation in response to government subpoenas. 
• If questioned by the government or law enforcement agents, it is important to remember that you do not need to speak with law enforcement. And, it is advisable that, if you do speak, you do so with an attorney present. As evident from the first prosecution mentioned above, speaking with law enforcement and making misrepresentations can cause more problems. Again, from first-hand experience, we can attest that our clients who have spoken to law enforcement without an attorney present have a much more difficult time explaining their position and mounting a successful defense. 
• If you have previously participated in telehealth arrangements and have questions about the legality of those arrangements, now is the time to speak with an experienced attorney who can guide you through the guideposts and structure your arrangements compliantly on an on-going basis. We have advised dozens of individuals about how to not just respond to reactive concerns, but also prophylactically address arrangements so as to avoid problems in the future.

• Finally, now is the time to consult with an attorney if you have concerns about illicit or unethical behavior by partners or others that you may have worked with. By communicating with an attorney before a government outreach, you may receive privileged legal advice and be able to proactively report concerns rather than reactively responding to inquiries. Our clients that have fared the best are those that have met with us before a government subpoena. By doing so, you can control the narrative.

While telemedicine offers so much potential, there remains considerable risk. There has never been a more important time to ensure that, while you take advantage of promising new medical technologies, you do so lawfully and compliantly.