INSIGHTS ON TELEHEALTH—DOJ, CMS & OIG Focus on Fraud in Telemedicine Arena

In support of the American Telemedicine Association's Telehealth Awareness Week, Jones Day's Digital Health team is sharing key insights throughout the week on various legal topics applicable to telehealth. The insights below, from partner Becky Martin (New York), relate to focus on the telemedicine arena from the DOJ, CMS, and OIG.

Since at least 2019, the U.S. Department of Justice (DOJ), Centers for Medicare and Medicaid (CMS), and the HHS-Office of the Inspector General (OIG) have coordinated efforts to police the growing telemedicine industry. In each of the last three years, and now including 2022, these federal authorities have announced "takedowns" involving hundreds of providers and other actors in the telemedicine space, bringing criminal, civil, and administrative tools to bear on what it has described as "telefraud."

Consistent with the now-established playbook, 2022 has seen coordinated actions by DOJ, OIG, and CMS in connection with allegedly fraudulent schemes involving a range of players in the healthcare industry: telemedicine companies and executives, clinical labs, durable medical goods companies, telemarketers, and healthcare professionals. As before, these actions have largely targeted alleged kickbacks and bribes paid by labs and DME companies in exchange for the referral of patients by medical professionals working with telemedicine companies.

In another parallel to past enforcement efforts, CMS's Center for Program Integrity simultaneously has taken administrative actions against dozens of providers involved in similar conduct, while HHS-OIG coordinated the release of its own public statement regarding telemedicine companies exhibiting certain suspect characteristics.

Given the prevalence and continuing growth of telemedicine (even in a post-COVID world), this scrutiny is unlikely to abate, and telemedicine providers and their partners should give heightened consideration to structural arrangements and other aspects of compliance with healthcare laws and regulations.

Jones Day's experience in digital health spans more than two decades and involves attorneys across practices from offices around the globe for practical, experienced, and effective telehealth legal services. For more digital health law updates, see our quarterly Vital Signs publication—a curated, one-stop resource on the most notable digital health law updates from more than 60 attorney contributors.

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