By Mathew J. Levy, Esq. & Zoila Sanchez, JD, MPH (Legal Intern)
PRICE GOUGING INVESTIGATIONS:
On March 16, 2020, the Department of Justice (DOJ) added new prosecutorial tools to its arsenal, directing each U.S. Attorney’s Office to prioritize the detection, investigation, and prosecution of criminal conduct relating to the current pandemic. DOJ has created a COVID-19 Hoarding and Price Gouging Task Force to protect scarce materials including: personal protective equipment (PPE) face masks and shields, PPE gloves, portable ventilators, medical gowns/apparel, and sanitizing and disinfecting products usable in a clinical setting. These materials are designated under the Defense Production Act (DPA) Section 102 and Executive Order “Preventing Hoarding of Health and Medical Resources to Respond to the Spread of COVID-19” which criminalizes hoarding for the purpose of charging exorbitant prices.
FRAUDULENT BILLING INVESTIGATIONS:
The DOJ recently stated that they are “committed to pursuing all manner of fraud in federal health care programs, including violations disclosed by whistleblowers under the False Claims Act, especially during this critical time as our nation responds to the outbreak of COVID-19.” The DOJ is requiring each office to name a Coronavirus Fraud Coordinator to spearhead efforts to investigate and prosecute COVID-19-related crimes and engage in outreach and awareness efforts. New York Attorney General James recently issued press releases warning New Yorkers of Coronavirus-related scams such as medical providers obtaining patient information for COVID-19 testing and then using that information to fraudulently bill for other tests and procedures. Recently, the U.S. Attorney for the Eastern District of New York urged the public to report such suspected fraud schemes by calling the National Center for Disaster Fraud (NCDF) at 1-866-720-5721 or sending an e-mail to email@example.com. As part of the coordinated nationwide response to unlawful COVID-19 related conduct, the NCDF complaints are available to all U.S. Attorneys and DOJs to help identify, investigate and prosecute fraud schemes. Further, the U.S. Department of Health and Human Services (HHS) Office of the Inspector General (OIG) is utilizing data analytics to desk audit monies spent on COVID related activities and materials affecting HHS programs and beneficiaries. OIG is coordinating with law enforcement partners including the Pandemic Response Accountability Committee and federal and state entities. For more information, see the new COVID-19 Portal.
Telehealth is a key area that is expected to draw increased oversight and attention due to its use during the COVID-19 pandemic and relaxation of billing requirements to facilitate access to these services. A report by Fair Health highlights the explosion of services rendered via this route, noting that private insurance telehealth claims grew by 4,347 percent when comparing March 2019 and March 2020 claims data. Providers using telehealth should keep current with HHS provider policies, information about insurance coverage and reimbursement, legal considerations for providing telehealth specifically with respect to privacy and security, informed consent and liability and malpractice and review guidance from the HHS Office for Civil Rights on the use of audio or video communication technology to deliver telehealth services during the public health emergency. Additionally, providers should keep up to date with state-specific telehealth requirements such as those relating to buprenorphine prescribing discussed here as well as telemental health services, which require specific informed consent forms.
HHS-OIG’s recent policy statement notifies providers that during the emergency period they will not be subject to administrative sanctions for reducing or waiving any cost-sharing obligations that federal health care program beneficiaries may owe for telehealth services delivered in accordance with applicable coverage and payment rules. Providers should keep records showing when cost-sharing was waived and document justification for the waiver as they may need it in the future to show eligibility and address potential billing issues.
COMPLIANCE RELATED TO MEDICARE AND MEDICAID REIMBURSEMENT:
Another area that is anticipated to see increased oversight is the CARES Act Provider Relief Fund (PRF), which initially reached over 1 million providers. Recently, the PRF expanded its reach to safety net hospitals serving vulnerable uninsured or Medicaid patient populations by $10 billion in funds, and is expected to meet the needs of several hundred thousand additional providers.
PRF provider recipients can take important measures to remain compliant by keeping up to date with requirements and attestation deadlines that HHS regularly updates for providers here. For example, the initial $30 Billion General Distribution requires a “commitment to full compliance with all Terms and Conditions” that were “material to the [HHS] Secretary’s decision to disburse these funds” to the recipient. Also, recipients must use the PRF Attestation Portal to sign an attestation confirming receipt of the funds and agree to the terms and conditions within 90 days of payment.
As a general rule, health care providers and entities can protect themselves by maintaining documentation that may be requested at a later date. For example, to prevent fraud and fund misuse, HHS instructs PRF recipients to submit documents sufficient to ensure that funds were used for healthcare-related expenses or lost revenue attributable to COVID-19.
 HHS Notice of Designation of Scarce Materials or Threatened Materials Subject to COVID-19 Hoarding Prevention Measures Under Executive Order 13910 and Section 102 of the Defense Production Act of 1950, 85 FR 17592 (March 25, 2020).
Mathew J. Levy, Esq. is a Principal of Weiss Zarett Brofman Sonnenklar & Levy, PC. Mr. Levy is nationally recognized as having extensive experience representing healthcare clients in transactional and regulatory matters. Mr. Levy has particular expertise in advising health care clients with respect to contract issues, business transactions, practice formation, regulatory compliance, mergers & acquisitions, professional discipline, criminal law, healthcare fraud & billing fraud, insurance carrier audits, litigation & arbitration, and asset protection-estate planning. You can reach Mathew Levy at 516-926-3320 or firstname.lastname@example.org.
Zoila Sanchez, J.D., M.P.H. joined the firm as a Legal Intern from the U.S. Department of Health and Human Services Office of Counsel to the Inspector General (HHS-OCIG) where she worked as a Legal Clerk with a focus on health care fraud and abuse. Ms. Sanchez holds a Bachelor of Arts degree from Stony Brook University, Master of Public Health from the University of Arizona, and a Juris Doctor degree from the Maurice A. Deane School of Law at Hofstra University where she was awarded the Honorable David A. Paterson Award in Public Service.
Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.
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