The False Claims Act makes it illegal to bill the U.S. government — including via Medicare or TRICARE — for telemedicine visits that don't offer genuine, real-time doctor/patient interaction; to bill for medically unnecessary cancer or genetic tests, durable medical equipment, or excessive prescriptions after an inadequate telehealth consultation; or to waive telemedicine copayments* or deductibles for preventative services, emergency medicine, or mental or behavioral health visits. The law provides a financial incentive for whistleblowers to report such wrongdoing by filing a lawsuit on behalf of taxpayers. This "qui tam" provision allows prevailing plaintiffs to receive up to 30 percent of the money returned to the U.S. Treasury.
If a whistleblower gets fired for reporting fraud, or suffers other retaliation, the FCA requires that the harm be reversed entirely: Successful plaintiffs may get their jobs back — and may receive damages including attorney fees and payment for emotional distress.
As with all legal claims, deadlines are crucial. If you have been punished for drawing attention to shady behavior by a hospital, medical professional, or telemedicine provider, you must file a retaliation claim under the FCA within three years. The statute of limitations for the underlying fraud generally is six years under the FCA — or 10 years in a few situations. Other laws, including some relevant state laws, may demand faster action.
Are there cash rewards for telemedicine whistleblowers?
Yes. To encourage people to expose fraud against taxpayer-funded programs such as Medicare and TRICARE, the False Claims Act allows whistleblowers to receive up to 30 percent of any money the U.S. government recovers as a result of their litigation. Because many telemedicine visits are funded by Medicare and TRICARE’s telehealth benefit — and because the government faces a growing wave of telemedicine fraud — the FCA is a powerful incentive for whistleblowers who know of such abuse. Depending on your state, other rewards statutes also may apply.
How does telemedicine fraud typically work?
Medicare and TRICARE are government health insurance programs for older people and military members and their families, respectively. They include a benefit for telehealth services — video-based office visits and health screenings that offer real-time communication between the provider and the patient. The benefit also covers “telemental” services such as individual psychotherapy, psychiatric diagnostic interviews and exams, and medication management.
To comply with Medicare and TRICARE requirements for telemedicine, a patient often needs an authorization or referral. Unethical providers, however, may conduct telehealth visits without establishing a physician-patient relationship or gathering necessary health history.* They also may bill Medicare or TRICARE for audio-only conferencing, phone calls, or text messages. Such practices are inappropriate and illegal.
Why is telemedicine fraud on the rise?
Telemedicine itself is becoming more popular due to technological advances and an increase in marketing. An accompanying rise in fraud is natural, in part because the format is easy to abuse. Now that the COVID-19 pandemic is curtailing in-person doctor visits, government prosecutors believe that telemedicine fraud is poised to explode.
What are some common types of telemedicine fraud?
If you work for a hospital, medical professional, lab, or telehealth consultant, you may have seen evidence of the following illegal practices:
- False certification: To claim reimbursement for telemedicine services, a provider must have an established relationship with the patient* — and must conduct each telehealth appointment via a real-time link that allows true observation and interaction between the doctor and the patient. Some providers ignore these requirements and bill Medicare or TRICARE anyway.
- Kickbacks: Some hospitals, labs, pharmacies, and medical equipment suppliers may offer money, gifts, or other favors to doctors who use telehealth appointments to order unneeded tests, equipment (such as back, neck, or leg braces), or medical services for unwitting patients.
- Billing fraud: Providers may conduct audio-only conferencing, phone calls, or texting with patients but bill the “visit” as as a full telemedicine or telemental consultation. This practice is illegal for Medicare and TRICARE patients.
- Self-referrals: Some telemedicine providers may own a stake in a supplier from which they order medical equipment such as braces or wheelchairs — or a family member may own a stake. This is an illegal conflict of interest.
- Waiver of copays or other costs: To make it easier to generate new business or bill more per patient, some telemedicine providers may waive or even reimburse copayments or cost-shares. Co-payments and cost-shares for Medicare and TRICARE are required by law, however, so such actions are illegal.*
How do I report telemedicine fraud?
One-off telehealth fraud against Medicare can be reported by going to the Department of Health and Human Services’ OIG Hotline Web page. Alternatively, you can call 1-800-447-8477.
If you are a healthcare worker who knows of serious telemedicine or telehealth fraud, however — or if you face retaliation in connection with such fraud — you may want to file a whistleblower lawsuit under the False Claims Act, a state equivalent, or both. There are strict standards for such suits: You must supply important information that the government doesn’t already know, and you shouldn’t be a participant in the fraud yourself. In addition, non-attorneys cannot file an FCA case by themselves — you will need a lawyer’s help.
Taking such a step isn’t a trivial matter. If you would like to have an experienced law firm on your side, please contact us.
*NOTE: Some of these requirements have been loosened for the specific purpose of COVID-19 diagnosis and treatment while in-person visits are limited. If you are unsure whether a provider is following the rules, we may be able to advise you.
