Bradley attorney Jason Mehta was quoted in 360Dx on COVID-19 testing fraud investigations. The HHS Office of Inspector General recently announced it had begun examining trends in Medicare claims data for lab testing to look for ordering patterns that could indicate fraud. With the strong demand for SARS-CoV-2 tests, limited supplies, and the decision by CMS to relax rules for certain test orders, the situation is potentially apt for fraud. Although the SARS-CoV-2 test is not particularly lucrative, the primary concern regarding fraud is the unnecessary add-on testing.
“A $60 COVID test in and of itself, even if you find 10,000 patients, that alone is probably not enough to warrant the government’s attention,” said Mehta. “But that, coupled with more expensive tests, with many more patients, etc., that is when it gets on the government’s radar screen.”
Mehta added that “the one overarching theme I have seen with healthcare fraud prosecutions is it is really all about the money going out the door, and the defendants that are charged either civilly or criminally are often the ones that are the most financially successful.”
“Most prosecutions have not been solely COVID-19 based,” he said. “Going forward, these prosecutions will likely be based on other badges of fraud, as well.”
Mehta noted that “where the government can rightfully claim that some of this is at least linked to COVID-19 fraud, I think they are going to do so.”
“When I was a prosecutor, we felt it was very appropriate to publicize cases of alleged fraud with press releases because we viewed part of our job as deterrence, and one way you deter people is by advertising other cases,” he said. “With a lot of the cases during COVID-19, if you dig deeper into the cases, there are other issues in play, but DOJ is trying to link it to COVID-19 to get a splashy headline.”
“I think with many other alleged fraud schemes, the government can clearly point to medical necessity or lack thereof to prove its case,” Mehta said. “With COVID-19 it is much more difficult. It’s hard to determine who is a presumptive patient. You have a lot of people who are very bright who are advocating for much more expansive testing with much more relaxed conditions as the basis for testing. So I think the medical necessity angle is going to be much harder to allege in these cases.”
“When you have these long lines for testing and you have limited testing, people wait in a car for six hours to be tested, it’s somewhat hard to overutilize tests,” he added.