Use of telemedicine and telehealth services skyrocketed during the COVID-19 pandemic.  At the beginning of the COVID-19 pandemic, the Center for Medicare and Medicaid Services (CMS) temporarily waived some requirements that providers must typically follow to bill for telehealth services (e.g., the requirement that the patient be present at a physician’s office or other authorized facility) to make sure patients can receive medical treatment without having to risk physically going to a doctor’s office.

In 2019, the U.S. Department of Justice (“DOJ”) announced “Operation Brace Yourself,” which resulted in charges against 24 criminal defendants and adverse administrative actions against 130 DME companies.  Operation Brace Yourself was a nationwide scheme related to the dispensing of orthotic braces using telehealth companies and providers that resulted in an estimated $1.5 billion in cost avoidance, according to the DOJ.  

Since Operation Brace Yourself, the DOJ has continued enforcement efforts, which CG attorneys have discussed in client alerts and presentations.  As the government has explained, these fraudulent schemes often involve medical providers, DME suppliers, labs, pharmacies, telemarketing companies (i.e., call centers), and telehealth companies.  These schemes are executed in various ways.  According to the government, one common execution method involves telemarketing call centers that solicit and entice Medicare beneficiaries to indicate a desire for DME on recorded lines or simplistic forms.  The perceived beneficiary desire for DME may be extracted using pressure sales tactics levied by the call centers.  The call centers then provide the “requests” to medical providers (often telehealth providers), who write prescriptions using the limited provided information and often without evaluating the patient.  The government contends such actions defraud Medicare and include kickbacks and bribes.  Enforcement actions related to similar schemes continue, as shown by a recent press release. 

On October 6, 2023, the DOJ announced that Daphne Jenkins, a 64-year-old nurse practitioner, was charged in connection with a $7.8 million telemedicine fraud scheme involving medically unnecessary durable medical equipment (DME), including orthotics such as back and knee braces.  The alleged scheme is reminiscent of those involved in Operation Brace Yourself. 

According to the government, between December 2018 and April 2020, NP Jenkins worked with a telemedicine company and allegedly signed pre-populated orders for medically unnecessary DME.  The alleged pre-populated orders were purportedly based on telemarketing calls made to Medicare beneficiaries.  The government alleges (1) NP Jenkins had no contact with the beneficiaries, (2) that no medical relationship with the patients was established, and (3) NP Jenkins generally signed these orders without reading them.  Also, like past schemes, the government alleges that the telemarketing company sold the signed orders to DME suppliers and laboratories who then submitted claims to Medicare.  The government contends that “as a result of Jenkins’ alleged participation in this conspiracy, over $7.8 million in claims were submitted to Medicare for DME that was medically unnecessary, based on false documentation, and tainted by kickbacks.”  

NP Jenkins was charged with one count of conspiracy to commit health care fraud, which is punishable by “up to 10 years in prison, up to three years of supervised release and a fine of up to $250,000 or twice the gross pecuniary gain or loss, whichever is greater.”  When the press release was published, NP Jenkins had not been found guilty of the charges.  As the government acknowledges, NP Jenkins is presumed innocent unless she is convicted.  If found guilty, then a federal judge will determine NP Jenkins’ sentence considering several factors and the federal sentencing guidelines.

Doctors and other healthcare providers who avail themselves of the opportunities that telehealth and telemedicine provide must remain attentive to potential fraud, waste, and abuse risks.  This is true when using marketing companies, lead generators, and call centers, or when doing business with third parties that may use these entities.  Providers should also ensure they are following applicable state, federal, and licensing board rules about the use of telemedicine to treat patients and governing the issuance of prescriptions.  The government’s enforcement actions have persisted for several years and show no sign of slowing down.

The attorneys at Chilivis Grubman represent healthcare clients of all types and sizes in connection with government investigations (both criminal and civil) and regulatory matters, including matters involving the DOJ and HHS-OIG.  If you need assistance with such a matter, please contact us today.