By: Andrew B. Eills and Kaitlin P. Murphy
Telehealth, also referred to as telemedicine, has a surprisingly long history. As early as 1924, science publications extolled the promise of a “radio doctor” linked to a patient by sound and live picture. In this century, however, the ubiquity of accessible technologies, and the comfort level of the general population in using them, have enhanced the utilization of telehealth as a diagnostic tool and treatment modality. Certainly, the COVID-19 pandemic turbo-charged its utilization. With these advances in technology and patients’ expectations regarding telehealth’s “always-on, always-available” use, it bears reminding that telehealth, and providers’ engagement with it, remain subject to state and federal laws.
New Hampshire State Law
As a result of the pandemic, most states, including New Hampshire, adapted to provide residents safe healthcare via telehealth. As an example, on March 17, 2020, New Hampshire issued Emergency Order #8, which provided, “All medical providers shall be allowed to perform healthcare services through the use of all modes of telehealth . . . to treat the residents of the state of [New Hampshire] for all medically necessary services.” Through this broad availability of telehealth services, the number of telehealth visits grew exponentially in New Hampshire, as well as nationally.
In New Hampshire, the state regulatory approach maintains that the location of the patient dictates which state laws govern the practice of medicine. RSA § 329:1-d, II provides, “[a]n out-of-state physician providing services by means of telemedicine shall be deemed to be in the practice of medicine and shall be required to be licensed under this chapter.” Therefore, when treating a New Hampshire-based patient via telehealth, a doctor must be licensed to practice in New Hampshire. This holds true for nurses, as well. RSA § 326-B. Thus, state licensure requirements dictate telehealth’s utilization.
On occasion, physicians located out-of-state and licensed in other jurisdictions are called upon to assist New Hampshire physicians and provide consultation through means associated with telehealth, such as reviewing x-rays or other diagnostic scans. In these instances, an out-of-state physician may provide medical advice without needing to be licensed in New Hampshire, but the licensed New Hampshire provider bears the responsibility for the patient’s diagnosis and treatment. RSA § 329:21, II. Notably, regular or frequent consultation by an out-of-state physician shall constitute the practice of medicine without a license. Id.
In connection with the increasing use and changing field of telehealth, on July 20, 2022, the Office of Inspector General (OIG) released a Special Fraud Alert (SFA) highlighting the potential fraud and abuse risks that may occur in an arrangement between telehealth companies and physicians.1 The OIG has and is investigating arrangements involving companies in violation of federal laws while engaged in offering providers telehealth services. A clear example of such fraud involves payment from a telemedicine company to a provider to generate orders or prescriptions for medically unnecessary items or procedures which can also result in the submission of fraudulent claims to Medicare, Medicaid, and other Federal healthcare programs.
The OIG has completed dozens of investigations of fraudulent schemes varying in design and operation including “international and domestic telemarketing call centers, staffing companies, Practitioners, marketers, brokers, and others.”
Such fraudulent schemes may implicate multiple Federal laws, including the Federal anti-kickback statute leading to criminal, civil, or administrative liability for Practitioners, Telemedicine Companies, and any other participants. See §§ 1128B, 1128(b)(7), 1128A(a)(7) of the Social Security Act; see also 18 U.S.C. § 1347; see also 31 U.S.C. §§ 3729-33. Violation of the Federal anti-kickback statute constitutes a felony with a maximum fine of $100,000, imprisonment up to 10 years, or both, and an exclusion from all Federal healthcare programs. See § 1128B of the Social Security Act.
The SFA provides a stark reminder that technological advances face legal and regulatory restrictions. The SFA contains a list of suspect characteristics related to practitioner arrangements with telemedicine companies which, taken together or separately, could suggest a heightened risk of fraud and abuse:
- Practitioner ordering or prescribing medical items or services for purported patients that were identified or recruited by the Telemedicine Company.
- The Practitioner does not have sufficient contact with or information from the purported patient to meaningfully assess the medical necessity of the items or services ordered or prescribed.
- The Telemedicine Company compensates the Practitioner based on the volume of items or services ordered or prescribed.
- The Telemedicine Company only furnishes items and services to Federal health care program beneficiaries and does not accept insurance from any other payor.
- The Telemedicine Company claims to only furnish items and services to individuals who are not Federal health care program beneficiaries but may in fact bill Federal health care programs.
- The Telemedicine Company only furnishes one product or a single class of products, potentially restricting a Practitioner’s treatment options to a predetermined course of treatment.
- The Telemedicine Company does not expect Practitioners (or another Practitioner) to follow up with purported patients nor does it provide Practitioners with the information required to follow up with purported patients.
Telehealth is here to stay but, as in any growth industry, so are those who enter the industry with fraudulent intentions. The OIG, therefore, “encourages practitioners to use heightened security, exercise caution, and consider the provided list of suspect criteria prior to entering into arrangements with Telemedicine Companies.” It is anticipated that, due to the potential impact and risk to the victims, fraudulent schemes within the telehealth industry will continue to be a high priority enforcement area for both the Department of Justice and the OIG. Telehealth providers should consult legal counsel to ensure compliance and remain vigilant to any legal pitfalls.
- Office of Inspector General, Special Fraud Alert: OIG Alerts Practitioners to Exercise Caution When Entering Into Arrangements with Purported Telemedicine Companies (Jul. 20, 2022), oig.hhs.gov/documents/root/1045/sfa-telefraud.pdf.
Andrew Eills and Kaitlin Murphy are attorneys in the healthcare practice group at Sheehan Phinney.