Bradley attorney Ty Howard was quoted in Part B News on the changes to expect in health care compliance enforcement under a new presidential administration.
The shift from one administration to the next isn’t always world-altering, said Howard. “Sometimes we can overstate the [enforcement] changes that are caused by administration changes."
However, he does think the focus of inquiries — and resources — could change under Biden. “The Trump administration put greater focus on violent crimes, street crimes [and] drug crimes,” Howard said. “And there’s a finite amount of resources. So if you are devoting federal resources toward those things, there will be non-zero diminishment of resources for white-collar crime.”
A major enforcement target would be telemedicine-type Medicare scams — that is, not innocent errors by providers billing telehealth procedures, but real criminal fraud.
“It’s kind of low-hanging fruit,” Howard said. Often including durable medical equipment, medical creams or genomic cancer testing, and “facilitated in some way by a quote unquote ‘telemedicine consult,’” these scams harvest beneficiaries using telemarketers, overseas call centers or health fairs and use their data to charge for massive inappropriate or non-existent treatments.
Howard referred to those cases as “first-wave enforcement,” targeting overt and high-profile fraud, where the accent is on criminal intent, not the means of committing it. As he and Bradley attorney Janus Pan wrote in a recent paper, such scams “are no more ‘telemedicine fraud’ than a bank robbery in which the robbers facilitate their crime through a getaway car is ‘automobile fraud.’”
Howard said he expects that these prosecutions will be followed by “second-wave” enforcement targeting “more nuanced cases” of telehealth malfeasance. That may include instances of “less overtly wrongful conduct, premised more squarely on telehealth requirements generally,” he predicted.
Howard also said he expects to see paycheck protection program loans — the low-interest, forgivable loans given by the Small Business Administration to COVID-affected businesses, including medical practices — come under scrutiny as well. This is because of “the volume of money and the speed with which it was dispensed,” he said. “That creates an environment where there is more likely to be fraud. We’ve seen that before with big publicly-funded programs.”
Howard advised that you keep your eyes open for early warnings of compliance trends at the audit level and even among non-governmental bodies from which government may take their cues.
“For example, say a provider gets contacted by their [state] Board of Medical Examiners about an issue,” Howard mused. “He may say, ‘I didn’t realize [that was wrong], I’ll agree to the sanction,’ and not think much of it. Or you get an audit request from state Medicaid or a private insurer. These things can turn into investigations into civil and even in some cases criminal liability.”
The original article, "As Biden Admin Takes Shape, Expect Closer Scrutiny on Compliance, HIPPA, Billing," appeared in Part B News on January 28, 2021.