Medical Practitioners Beware:  Telemedicine Schemes May Result in Unexpected Liability

Posted On Wednesday, July 27, 2022
By: Chalon C. Young

Takeaway: Medical practitioners should exercise extreme caution when entering into telemedicine agreements, in order to avoid unintended civil and criminal consequences.  It is advisable to consult with an attorney before entering any such agreements.

On July 20th, the Office of Inspector General (OIG) issued a Special Fraud Alert, warning practitioners to exercise extreme caution when entering into arrangements with telemedicine companies.

After multiple investigations into fraud schemes involving companies that purport to provide telehealth, telemarketing, or telemedicine services, the OIG has found that many of these companies exploit medical practitioners who may unknowingly become entangled in fraudulent schemes.

The OIG has issued guidance warning practitioners of ways to identify telemedicine companies that may be engaging in illicit activity. The most common element of these schemes involves kickbacks – schemes wherein telemedicine companies pay practitioners in exchange for ordering or prescribing services that are either medically unnecessary or for patients with whom the practitioner has limited interaction.

OIG cautions medical practitioners to exercise extreme caution and be vigilant when entering into agreements with telemedicine companies. It is important that they be cautious because practitioners could ultimately find themselves criminally and civilly liable under multiple federal laws, including the Anti-kickback statute, fraud, and False Claims Act.

OIG has identified several “suspect characteristics” that can alert practitioners to these potentially dangerous and fraudulent arrangements. Those “suspect characteristics” include, but are not limited to, the following:

  • Patients identified or recruited by telemedicine companies, a telemarketing company, health fair, or through internet or social media advertising free or low-cost services.
  • The practitioner is not provided with sufficient information about the potential patient, that would allow the practitioner to independently assess the medical necessity of the services or items to be prescribed.
  • The telemedicine company compensates the practitioner based on volume.
  • The telemedicine company does not accept insurance from any other payor besides Federal health care programs.
  • The telemedicine company claims to only service individuals who are not Federal healthcare beneficiaries (but may, in fact, bill Federal health care programs).
  • The telemedicine company provides only one product or a single type of service, which may potentially restrict the practitioner’s treatment options to a particular type of treatment.
  • The telemedicine company does not expect the medical practitioner to follow up with patients after a visit, nor does it provide the practitioner with required information needed for such follow-up.

It is important to note that this is not an exhaustive list, and the presence of one or more of the above characteristics does not in itself create an assumption of wrongdoing on the part of a telemedicine company. However, it is imperative that practitioners protect themselves from unintended consequences of entering into what may initially appear to be a legitimate arrangement with a telemedicine company. The consequences for medical practitioners can be dire – including criminal, civil, and administrative liability. Medical practitioners considering partnerships with telemedicine companies would be wise to consult with an attorney before entering into any such agreement.

The official statement of the OIG can be read here

The attorneys at Pietragallo Gordon Alfano Bosick & Raspanti, LLP  are skilled at assisting health care providers in enhancing compliance and responding to government enforcement actions.  We assist clients in all 50 states, the District of Columbia, and abroad. 

Lessons from Hesser: Attempt conviction Overturned

Posted On Thursday, July 14, 2022
By: Tama Beth Kudman

Takeaway: Attempt crimes can be proven only where a defendant’s objective is in fact illegal. If the government cannot prove that the defendant sought to do something which is, in fact, illegal, then it has not sustained its burden of proof, even if the defendant believed that his actions would violate the law and sought to do so.

On Wednesday, July 13th, the Eleventh Circuit reversed the denial of a Petition for relief under 28 USC 2255 (ineffective assistance of counsel), and ordered that the Defendant’s conviction be vacated in U.S. v. Hesser, USCA11 Case: 19-13297. The Court found that defense counsel should have moved for a judgment of acquittal at the conclusion of the government’s case at Defendant’s trial on several counts of attempted tax evasion. The Court held that the conviction failed because the Defendant’s hiding of assets did not violate the law. On the question of attempt liability, the court explained: “[S]omeone can be convicted for attempt when they mistake the facts but not when they simply mistake the law.”

To elaborate, the Court explained that “The Government confuses a mistake of law with a mistake of fact. Suppose one defendant is charged with attempted murder because he went into a bedroom and shot a gun at a mass under the covers, which he believed to be his arch enemy. It turns out the mass was a pillow and not a person. If the facts had been as the defendant thought they were—if he had been able to do everything he planned to do—he would have likely committed the crime of murder. He simply mistook the facts because it turns out his enemy was not under the covers, and he could be successfully prosecuted for attempted murder. Now suppose a second defendant mistakenly believes that it is a federal crime to shoot at trees on one’s own property. He intentionally shoots at a tree in his front yard, and he thinks that he has committed a crime. He is mistaken on the law. Under this hypothetical, shooting at a tree in one’s own yard is not a federal crime. So, the second defendant cannot be convicted of an attempt crime because he did everything he planned to do, and it still did not amount to a step toward criminal activity.”

In Hesser, the Government alleged that one of the affirmative acts of attempted tax evasion allegedly undertaken by the Defendant was to hide gold bullion. The Court held that the government did not prove that the Defendant hid gold bullion that was taxable to the Defendant. So, the Court explained that “Without proving that the gold was actually Hesser’s, the Government has left open the very real possibility that Hesser committed a mistake of law—that he thought he was doing something criminal that was in fact innocuous—or that he did not even think he was doing something criminal in hiding money for the family trust. And that is not proof beyond a reasonable doubt of an affirmative act, which the Constitution requires for Hesser’s conviction to stand.”

The Court accordingly deemed Hesser’s counsel’s performance deficient because he failed to properly move for judgment of acquittal when the Government had not carried its evidentiary burden in its case-in-chief under Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.