Telemedicine, DME, Genetic Testing – Oh My! DOJ’s Interest Piqued?

Published by Niki McCormick on

The Department of Health and Human Services (“DHSS”) and the Department of Justice (“DOJ”) recently issued a joint report on the status of their Health Care Fraud and Abuse Control Program for Fiscal Year 2021. The headline, as usual, was the significant amount of money the Federal government won or negotiated related to health care fraud judgment and settlements in 2020, $1.8 billion. This report comes in the wake of the Federal government collecting close to $3.1 billion related to settlements or lawsuits from previous years. Interestingly enough, the DHSS and DOJ never seem to publish the percentage of outstanding “accounts receivable” they’ve actually collected – but we’d surmise it wouldn’t make as impressive of a headline. Regardless, the dollar amounts are staggering, and serve to highlight the significant risk attendant to doing business with the Federal government.

Of particular note, fraudulent schemes involving telemedicine, durable medical equipment (“DME”), and genetic testing appear to be the new hot-button issues, as these schemes occupy more space in the “Highlights of Significant Criminal and Civil Investigation” section of the report than the section regarding prescription drugs and opioids. Generally, these schemes involve a telemedicine company hiring a physician as an independent contractor to evaluate a patient and place an order for an orthotic brace or other genetic testing. In some cases, the DOJ found that the orthotics or genetic testing are unnecessary, but in nearly all cases, the question is whether the physician actually had the necessary physician-patient relationship with the patient required to order the services.

In Missouri, it’s particularly important that physicians keep the relevant telemedicine statutes in mind when agreeing to undertake any sort of telemedicine services. Mo. Rev. Stat. § 191.1145; Mo. Rev. Stat. § 191.1146; Mo. Rev. Stat. § 334.108.

If you are a party to a potentially concerning telemedicine contract, or if you are unsure about compliance with applicable regulatory regimes, please do not hesitate to contact Lashly & Baer, P.C.’s Health Care Advisory Team at 314-621-2939.