This month we look at a spate of recent criminal charges filed by the Federal government against over 100 medical professionals (including 42 doctors). The charges stem from telehealth services, which have become a modern convenience and a thriving industry.
When your primary care physician conducts an appointment virtually, there is nothing inherently criminal or inappropriate about that. Telehealth or telemedicine is generally legal, but as you will see, there must be an established and genuine relationship between the practitioner and patient.
Generic Cancer Screenings
The “sweep” by the Department of Justice takes aim at an allegedly common scam that targets the elderly. As they describe it, a consumer receives a phone call from someone claiming to be from Medicare—or another official-sounding organization. They offer to send ostensibly free test kits to ensure one is not genetically predisposed to cancer. And typically they explain that the test is entirely covered by Medicare, but that the consumer must provide significant, and private information to get coverage.
In many of these cases the government claims they took it even further. What they did next enabled them to make over a billion dollars from government organizations such as Medicare.
After they contacted the elderly patients, these defendants were accused of paying off doctors to order the tests. Then they would also pay the lab to run the tests and charge Medicare for all of it. The tests were not truly free, but the marketers allegedly used the elderly patients to make claims for reimbursement from Medicare. In at least some cases, the DOJ claims that patients never even received the screening results. Simply put, each cotton swab they sent back to be analyzed by the lab gave the scammers a reason to request money from Medicare.
A Telemarketing Compliance Lesson
As we said earlier, telehealth or telemedicine consultations are only covered when an established relationship exists between a medical professional and a patient. In this case, the doctors had often never met the patients for whom they requested the genetic cancer screening tests and although there were other instances when doctors would have a brief phone conversation with the elderly patient, the DOJ argued that these failed to meet the standard.
Even though the doctor spoke on the phone with the patient, they had never met before. The Department of Justice’s position is that this does not constitute a relationship. The American Medical Association states that a “…valid patient-physician relationship must be established before the provision of telemedicine services.” It is important to note that this can be achieved in ways other than a physical face-to-face meeting. Your primary care physician may refer you to a specialist and if that referral results in a virtual meeting, there may well be a genuine, established relationship. But as the recent sweep demonstrates, the DOJ is closely monitoring these new forms of medicine and expects marketers to play by the rules.
Cove Law
Maintaining compliance is challenging for telehealth and telemarketing professionals because of the constantly evolving laws and regulations. Cove Law has been serving the telemarketing industry since 1995. Allow our experience to be your company’s greatest asset. We also have extensive experience defending telemarketers who have been accused of being incompliant. Contact us today to schedule your free consultation.
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