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Expanding Telemedicine Reimbursements Could Increase Risk of Fraud

On March 17, the Center for Medicare and Medicaid Services expanded reimbursements for the use of telemedicine and instituted blanket waivers of requirements.

Those waivers include allowing for the replacement of durable medical equipment which has supposedly been damaged or needs replacing without much if any of the usual documentation to establish medical necessity. Medical necessity is still required but the documentation and physician procedures usually needed to establish it are more than a little relaxed.

Yet, just last year, before the coronavirus crisis became the over-riding concern of the government, the Department of Justice made it a priority to crack down on illegal prescriptions provided through telemedicine and especially for durable medical equipment. Several public cases exposed the degree to which physicians and nurse practitioners could prescribe fast sometimes too fast, through teleconferences with patients.

The government paid for millions of dollars of prescriptions and durable medical equipment (likely billions actually)and it acted to shut some of these scams down. Fortunately, some legal requirements, such as medical necessity and laws such as the Anti-Kickback Statute were in place to help the government get back some of the money and fight the fraudsters. It is hard to remove a statute enacted into law. The basic standard of a Medicare benefit is that it must be medically necessary. You can look it up, the Social Security Act which authorizes all this health care funding will only authorize payments for services, drugs, and equipment which are medically necessary. Yet the guidance cited above seems to allow a broad degree of waiving provisions used to ensure that the basic requirement of any Medicare benefit, is enforced.

Many of the new CMS rules may be needed in this crisis. We all want hospitals to have greater flexibility to provide services and health care providers to use telehealth technology since nobody wants to spread the virus in order to see a doctor or nurse for routine care now. The use of telemedicine will continue to expand even after this crisis subsides. Telemedicine at its best can reduce the charges for health care and the costs for everyone to see a doctor.

This creates all the more reason to be concerned that the potential for fraud has not been addressed. Controlling fraud may seem like a small matter in the middle of a pandemic, until you realize that the fraud involved actually saps our ability to respond to the crisis. Resources that could go to fund patient protective equipment instead are going to get stolen unless we pay attention.

Now CMS is allowing Medicare Administrative Contractors (“MAC’s” are the people who determine what bills on their face are ok to pay with Medicare’s money) flexibility to waive replacement requirements for Durable Medical Equipment.

Usually, the benefit you have from Medicare to get braces for your ankles or back is limited. A person can’t just order multiple braces every year. Now the usual requirements needed for replacement braces are being waived supposedly to make it easier for people who need a replacement brace to get one sooner. Just as likely it will allow unscrupulous manufacturers the chance to sell inventory whether a replacement brace is needed or not especially since new physicians’ orders and new medical necessity documentation appear not to be required.

These are braces people wear or use for years at a time as part of a benefit that takes into account the idea that you would ordinarily wear such equipment for years for a chronic condition.

I’m frankly a little confused as to why a piece of Durable Medical Equipment necessarily would be more subject to being destroyed or damaged as a result of the coronavirus. Such prosthetic devices and braces are supposed to be built to last and to deal with conditions that do not change much over time.

I can understand how getting a prescription, seeing a legitimate doctor for a real need for replacement equipment might be more difficult now, but if CMS is already loosening the requirement to allow telemedicine, it should make that kind of prescription possible. So why make it this easy to avoid the requirement that we demonstrate the equipment is necessary?

Here’s hoping the legitimate DME providers, the ones who do provide needed equipment to people being treated, are the ones who take advantage of this provision more than the scam artists buying ads on TV.

We’ll be waiting on the other side of this crisis, when we learn, about equipment that was not damaged or destroyed at all, just mailed to increase the bottom line of some unscrupulous DME provider. The Anti-Kickback Statute is still law and some of the scam artists will be so blatant that no new so-called “regulatory relief” will save them.

It’s too bad this kind of thing may encourage many to take advantage of a crisis.

Tony Munter Whistleblower Attorney

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