Telemedicine Fraud Prosecutions
The HFFP Investigative Partnership
Many telemedicine fraud prosecutions are started by the Healthcare Fraud Prevention Partnership (HFPP). The HFPP is a voluntary public-private partnership that investigates healthcare fraud with a data centered approach. It uses data processing and information sharing among partners that include the federal government, state agencies, law enforcement, private health insurance plans, and healthcare anti-fraud associations. This entity currently has over 300 partners. You can view the HFPP partner list here.
They aggregate data and use highly sophisticated (Artificial Intelligence like) algorithms to identify targets. Lengthy investigations will be initiated using interviews, chart reviews, coordination with SIU units at insurance companies so that in a small number of cases sent by the computers for review, actual criminal charges will be filed.
Telemedicine as a Focus of the HFPP Partners / CPT Codes are Tracked
Telemedicine companies and telemedicine physicians are a focus of the HFPP and other investigative agencies. A simple example is the use of CPT codes for initial visits. Consider CPT 99203.
The AMA website defines the use of the CPT 99203 as an:
Office or other outpatient visit for the evaluation and management of a new patient, which requires a medically appropriate history and/or examination and low level of medical decision making. When using time for code selection, 30-44 minutes of total time is spent on the date of the encounter.
Telemedicine visits can tracked to see if they lasted 30-44 minutes and patients can be interviewed as well. The total number of patients seen in a day can be compared with a 30 minute time frame so that if a doctor sees more than 16 patients in an 8 hour day he/she will be suspect. Physician lawyers know that the 30-40 standard is simply one of two ways to evaluate the code and the examination and complexity standards can be met in less than 30 minutes.
CPT code 99205 is a trigger for telemedicine fraud red flags. It requires a high level of decision making and/or an hour plus of time. Few physicians spend an hour on such visits and it is hard to imagine many cases where a first visit would take that amount of time - even if complex. Still juries and judges will balance the hour vs. the complexity and look for some significant time investment to justify the 99205 code. Problems arise in followup visits not based upon complexity but simply on a time per patient (average) analysis. Computers may find that simple followups should take 10 minutes. If you are billing over 6 an hour the computer will "scream".
HFPP Partners and government agencies will target certain codes such as 99205 for data analysis. They can use comparative statistics to compare you to other providers. The use predictive analytics, artificial intelligence, and machine learning to create telehealth data but one of the most effective tools is a simple spreadsheet. The number of patients seen over a period of time vs. the presumptive time period (e.g. 30 minutes for 99203) They can even drop the time from 30 minutes to 15 and again compare the doctor to standards that they establish.
What Happens After a Computer Triggers a Red Flag?
The key is that these data triggers are not the end of the investigation. They are the guides and the beginning. The actual investigation can take months or even years.
When telemedicine fraud cases are filed the will often include wire fraud if the case is filed federally. More generally they allege billing and coding fraud. However, this is not the end. The earlier telemedicine cases were DME prescription related. The newer telemedicine fraud cases are physician focused. Other than upcoding claims we are seeing assertions of kickback schemes. The concept is that workers compensation referral organizations provide lists of doctors who accept workers compensation liens. Or, personal injury firms may refer clients to telemedicine doctors. The kickback is alleged to be referrals in exchange for a friendly diagnosis.
If Charges are Filed How is the Physician Treated?
Shock & Awe
When a medical fraud case is filed the standard conduct is a raid of the physician’s office with a seizure of computers and paper records. Office staff is interviewed on the spot. Recently terminated employees are targeted in the hopes that they have negative information to convey.
The bank accounts of the physician are seized and frozen as are many personal financial assets. 7 am arrests are common with family watching the doctor taken in handcuffs. Bail can be in the hundreds of thousands of dollars. A petition to suspend the physician’s ability to practice while the case is pending is common filed.
Negotiated
If the physician has advance notice, often a peaceful self surrender and negotiated terms of seizures and practice can be negotiated.
If you are a physician facing telemedicine fraud charges, expert legal representation is critical. Our criminal defense lawyers are experts in medical fraud defense. You should do your best to retain our physician lawyers before the arrest and office search stage of the case. These cases are not always losers but early intervention increases the chance of a good outcome and helps minimize the harm from the arrest and prosecution itself.