Earlier this month, the U.S. Department of Health and Human Services, Office of Inspector General (HHS, OIG) issued a special fraud alert advising healthcare providers to exercise caution when contracting with telemedicine companies. Such alerts are significant as they put providers on notice that OIG intends to investigate and prosecute potential fraud regarding telemedicine/. Such notices provide the opportunity for healthcare providers to review their practices and compliance, as well as list examples of suspect practices in the industry.

Historically, federal regulations limited the use and scope of telemedicine. It became widely available, however, during the COVID crisis that necessitated the loosening of government regulations. While a relaxation of regulations and restrictions offered patients greater access to physicians, it also opened the door to fraudulent conduct. In previous articles, we explored schemes involving compound medicines, genetic cancer screening (CGx and PGx tests) and durable medical equipment (DME) such as orthotic braces.

This latest fraud alert confirms that OIG is still aggressively targeting DME companies, laboratories and pharmacies using telehealth services. The OIG alert offers a non-comprehensive list of factors that they examine in potential fraud cases, including:

1. Patients that are referred to a practitioner through a telemedicine company, telemarketing, recruiter, call center, health fair or internet;
2. Practitioner has only limited access or contact with the alleged patient to meaningfully access the medical necessity of the services solicited;
3. Telemedicine company compensates the practitioner based on the volume of prescriptions and services;
4. Telemedicine company only provides services to federal health care program beneficiaries, and does not accept private insurance;
5. Telemedicine company only provides a single class of products such as braces, genetic testing, compound medicines – pain, scar and vitamin creams – thus limiting a practitioner’s treatment options; and
6. Telemedicine company does not expect its physicians to follow up with the patients regarding their prescriptions or services.

This alert expressly notes that proactive marketing that advertises free or low cost items or services covered by federal healthcare programs and exclusively marketed to such beneficiaries is “suspect”. Additionally, any program that limits a practitioner from contacting a patient to follow up or offer other medical services is suspect.

While HHS, OIG alerts provide valuable guidance for practitioners and other healthcare professionals, they also provide federal prosecutors the opportunity to argue that a provider’s good faith defense is limited after such an alert has been issued, i.e. that providers are on notice that such practices as suspect.

Stahl Gasiorowski Criminal Defense Attorneys have represented dozens of physicians, marketers, telehealth companies and pharmacists in federal healthcare fraud investigations. We proactively and aggressively protect our clients’ rights. To contact Mr. Stahl, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

The Department of Justice just announced charges against 21 individuals in a nationwide crackdown of COVID-19 related prosecutions that resulted in $150 million worth of fraud. The schemes were varied and involved medical doctors, medical labs, marketers and others in the healthcare field.

For instance, two owners of a lab in California allegedly billed more than $125 million in fraudulent claims. In Maryland and New York drive through test site operators are accused of using confidential patient information to bill for lengthy office visits that never occurred. In New Jersey, five individuals were accused of paying or receiving kickbacks for referring COVID tests to a particular lab. Even though the tests were medically necessary, and the lab only billed the allowable rate to the government program, the lab was accused of violating the anti-kickback statute that prohibits paying individuals or companies to refer tests.

The Maryland case charged a physician with submitting false claims to Medicare and private insurers. The defendant owned drive through COVID testing sites. Employees gathered patient information at the sites and later submitted false claims for complex in office visits for other healthcare procedures that never occurred.

In Florida, a registered nurse was charged with signing huge numbers of medically unnecessary doctor’s orders in exchange for sham telemedicine consulting fees. Another case in Florida charged individuals with fraudulent Medicare billing for medical equipment that was obtained by paying kickbacks to marketing companies that solicited patients for equipment they didn’t need.

In other schemes, defendants in California were charged with allegedly counterfeiting vaccine cards. Another case involved a hospital pharmacy director who obtained authentic Moderna dose lot numbers and used them to falsify vaccine ecards.

In New Jersey, one of the District’s first healthcare fraud trials just resulted in a guilty verdict against a medical sales representative of a diagnostic lab who paid kickbacks to a physician for referring tests to the lab. In an effort to disguise the kickbacks, the marketer placed the physician’s medical assistant on the lab’s payroll. In a related scheme, the marketer was paid for promoting medically unnecessary compound medicines that certain insurance plans covered. The defendant and others paid kickbacks to doctors to prescribe the unnecessary compounds without even examining the patients.

Other cases have charged individuals with fraudulently obtaining relief funds from the Coronavirus Aid, Relief and Economic Security Act. A 2020 bill that provided billion in emergency financial assistance.

These and scores of other cases highlight federal authorities continuing investigations and DOJ’s aggressive prosecution of a variety of healthcare fraud schemes. These schemes involve medically unnecessary compound medicines, genetic cancer tests, kickbacks on prescriptions for DME – durable medical equipment – such as braces, as well as COVID-19 tests.

Federal healthcare laws and regulations are complex. There are countless ways for doctors, pharmacists, lab owners and marketers to violate these laws. Stahl Gasiorowski Criminal Defense Lawyers have extensive experience representing individuals and corporations accused of healthcare fraud. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rgs@sgdefenselaw.com.

U.S. Attorney General Merrick Garland announced that the Department of Justice (DOJ) is planning a hiring spree to investigate and prosecute pandemic related fraud and traditional white collar crimes. President Biden’s budget seeks $3.5 million to hire an additional 120 prosecutors to focus on pandemic related fraud and $325 million for 900 additional FBI agents to investigate white collar crimes.

Speaking at the ABA’s annual white collar crime conference, Garland said that DOJ’s interest in white collar crimes is once again being prioritized. DOJ is placing renewed emphasis on serving victims of white collar crime with an approach similar to that in violent crimes. What this means is that DOJ will place a greater emphasis on victims’ rights and economic losses. There will be a renewed effort on criminally prosecuting responsible corporate officers, rather than merely accepting big-dollar corporate pleas or civil resolutions with large financial penalties.

This announcement comes on the heels of DOJ’s new hires for the Criminal Division’s Fraud Section late last year, as well as its renewed efforts in prosecuting environmental and antitrust matters. In addition to the new funds and hires, DOJ will use what the AG calls “force multipliers” to uncover fraud – partnerships with government agencies in the U.S. and abroad and new data analytics. Embedded in the Fraud Section are FBI data experts that model their assessments of payment anomalies and other activity patterns first developed in investigations of health care fraud.

A.G. Garland also announced the formation of KleptoCapture, its new Russian sanctions task force headed by former SDNY AUSA Andrew Adams. With more than a dozen prosecutors, the task force is designed to quickly and aggressively enforce sanctions here, and those coordinated with other countries, to punish the Kremlin and certain oligarchs for the invasion of Ukraine.

Stahl Gasiorowski Criminal Defense Attorneys actively and aggressively defend clients being investigated and prosecuted for white-collar fraud. We have successfully defended cases involving health care fraud, tax fraud, crypto currency, international money transfers and money laundering, import duties and taxes, and other types of sophisticated fraudulent schemes. To contact Mr. Stahl, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rstahl@stahlesq.com.