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DOJ’s Enforcement Activity Against Individuals: Acute Focus on Telemedicine

DOJ’s focus on individual accountability is particularly important with respect to telemedicine. Telemedicine is a burgeoning field, with a projected market increase of 18 percent annually over the next six years, reaching $103 billion in 2024. In light of this recent surge in profitability, DOJ has begun paying extra attention to telemedicine, with at least one recent HHS-OIG report asserting that more than one-third of all telemedicine claims are improper.

The report’s claim is further supported by a recent increase in telemedicine prosecutions. In April 2019, DOJ announced charges against 24 defendants, including owners of various telemedicine companies, for their alleged involvement in a health care fraud scheme resulting in $1.2 billion in loss. This scheme involved the payment of kickbacks and bribes by durable medical equipment (DME) companies to medical professionals working with telemedicine companies, in exchange for the referral of Medicare beneficiaries. DOJ alleges that the defendants paid doctors to prescribe medically unnecessary DME without ever seeing patients or after only a brief telephone conversation. The prosecution involves charges in at least seven districts across the United States, including New Jersey, Florida, Texas, Pennsylvania, and California. Additionally, DOJ prosecuted several other individuals in connection with unrelated telemedicine schemes in late 2018 (see the agency’s press releases here, here and here). In light of this recent trend, companies should exercise extreme caution and consult with regulatory experts prior to opening telemedicine practices. Companies can expect to see increased scrutiny and further prosecution of telemedicine companies moving forward.

Practice Note: DOJ has recently re-emphasized its willingness to exercise significant discretion and reward companies that invest in strong compliance programs. Looking forward, health care companies should maintain detailed and up-to-date documentation of all compliance programs, in case such an FCA case should arise. A lawyer should be consulted if an updated compliance program is needed.

© 2020 McDermott Will & EmeryNational Law Review, Volume IX, Number 126

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About this Author

James A. Cannatti III* practices at the intersection of today's most pertinent health care issues, including digital health, health IT policy, and fraud and abuse, including Anti-Kickback Statute/Stark Law matters. With more than 10 years of experience in the US Department of Health & Human Services’ (HHS) Office of Inspector General (OIG), most recently as Senior Counselor for Health Information Technology, James is well-attuned to the regulatory issues impacting the rapidly evolving digital health landscape, including:

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Amandeep S. Sidhu, mcdermott will emery, pro bono,health care, FCA, qui tam
Partner

Amandeep S. Sidhu is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office.  He focuses his practice on complex commercial disputes, health care related investigations and litigation, government strategies and regulated industries.  Aman serves on the Firm’s Diversity/Inclusion Committee and Pro Bono and Community Service Committee.  Selected as a 2013 Rising Star in Civil Litigation Defense by Super Lawyers, Aman was also named to the National Law Journal's “Minority Top 40 Under 40” in 2011 for his reputation as a strong litigator with a solid commitment to pro bono cases.

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Sophia Luby, McDermott Law Firm, Washington DC, Litigation Attorney
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Sophia A. Luby focuses her practice on complex civil litigation.

While in law school, Sophia interned with The Honorable Anna Blackburne-Rigsby at the District of Columbia Court of Appeals, and with the United States Department of Justice, Civil Fraud Section. She was the senior notes editor for the Federal Circuit Bar Journal, a legal writing fellow and a dean’s fellow. She also received the Presidential Volunteer Service Award for her commitment to pro bono legal service. 

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Theodore Alexander, Mc Dermott Law Firm, Washington DC, Litigation Law Attorney
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Theodore (Ted) Alexander focuses his practice on general litigation matters. He has experience in Americans with Disabilities Act (ADA) and white-collar cases. Ted also advises clients on federal health policy.

Prior to joining McDermott, Ted worked for various members of Congress. Most recently, he served as legislative director to a member of the House Energy and Commerce Committee, where he primarily advised on health policy. Ted has also advised on tax and trade policy and has experience drafting and...

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