Abstract

Excerpted From: Chinelo Diké-Minor, Be Careful What You Wish For: An Overreliance on Telemedicine Could Harm Health Equity, 33 Annals of Health Law and Life Sciences 137 (Summer, 2024) (178 Footnotes) (Full Document)

Advocates for health equity frequently point to telemedicine as a promising way to achieve greater health access, and by extension, equity. This viewpoint, however, often fails to account for the ways in which the increased use of telemedicine--if accompanied by fraud--could adversely impact health equity. This article argues that while telemedicine is an important tool in achieving health equity, the fraud-related risks that come with it need to be examined. To be clear, this article does not argue against telemedicine as a potential path to achieving greater health equity; rather it simply notes the fraud-related risks that accompany it and highlights some efforts to address those risks.

This article proceeds as follows. Part I examines the potential benefits of telemedicine and explains the ways in which it could enhance health equity. Given some of these benefits--the rules around telemedicine were relaxed during the COVID-19 public health emergency (PHE). It then considers whether given these potential benefits and the recent COVID-19 PHE-related increased use of telemedicine, it could be a panacea--of sorts--to health inequity.

Part II cautions embracing this approach too quickly. Part II.A discusses the apparent increased incidence of fraud relating to telemedicine by giving an overview of recent Department of Justice (DOJ) national enforcement actions and Centers for Medicare and Medicaid (CMS) administrative actions, a special fraud alert by the Department of Health and Human Services Office of Inspector General (HHS-OIG), and a study by a public-private partnership focused on studying fraud. Part II.B explains why telemedicine is at risk of fraud by explaining why health care in general is susceptible to fraud. Part II.C discusses why telemedicine is particularly vulnerable to fraud. It argues that three features of telemedicine make it an ideal candidate for fraud schemes primarily because these features make telemedicine schemes difficult to investigate and prosecute, thus exacerbating the “low risk, high reward” nature of health care fraud. These three features are that telemedicine schemes are: (1) as Professor Katrice Bridges Copeland has explained, easily scalable, i.e., they can reach more beneficiaries (and thus result in billing for more claims) in a shorter period than non-telemedicine fraud schemes, (2) involve multiple different isolated parties, and (3) target beneficiaries who might be complicated witnesses.

Part III then discusses how the increased use of telemedicine--if accompanied by fraud--could damage efforts to achieve health equity, particularly given that many telemedicine schemes target vulnerable populations who are the intended recipients of health equity efforts. This harm could occur in several ways: (1) by at the moment of the fraud, depriving patients of the care they may actually need; (2) by subsequent to the fraud, making it more difficult for patients to access legitimate services, if, for instance, they meet their coverage caps as a result of the prior fraud, and by exposing the programs that enable them to access care to additional attacks and funding cuts; and (3) by increasing distrust of the health care system among the populations on which health equity efforts are focused.

Finally, the Conclusion argues that if efforts are not made to deter and detect fraud in telemedicine, the expanded use of telemedicine could have the unintended consequence of exacerbating health disparities by harming the very patients that health equity advocates seek to help. It recommends that law enforcement and those seeking to achieve health equity devote attention to understanding and addressing fraud within telemedicine, including by developing tools to address common features of these schemes. These features include limited or no patient interaction, occurrence across multiple jurisdictions, and the targeting of certain types of items and services.

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As noted in the Introduction, this article does not argue against telemedicine as a potential path to achieving greater health equity. Indeed, it emphasizes that telemedicine can have great benefits. It does, however, seek to illustrate how telemedicine is susceptible to fraud. It does this to encourage those seeking to mitigate health inequities to understand and consider these risks when they seek to use telemedicine to address health inequities by increasing access to health care.

The good news is that efforts are already being made to study and address these risks. For instance, HHS-OIG has identified indicators of fraud in telehealth. It has used these indicators to identify providers who pose a high risk to Medicare. As already noted, entities like HFPP have also dedicated time and effort to understanding telemedicine fraud.

As these and other efforts to identify indicators of fraud continue, they should pay attention to the fact that telemedicine schemes tend to have some commonalities. As discussed in Part II.A, they tend to involve limited or no patient interaction, occur across multiple jurisdictions, and appear to target certain types of items and services, specifically DME and testing. These features suggest some potential ways to curb telemedicine fraud. They include requiring the initial visit with a telemedicine provider to be in-person to help ensure some interaction with patients. In addition, they should include facilitating the ability of prosecutors to understand the national scope of a crime by creating a national all-payer database--i.e. “a single source for claims and enrollment data across all (or most) sources of insurance coverage within a single state.” Several states have already done this but there is no similar national database that reflects information from all payers, not just Medicare and Medicaid. Finally, these efforts should involve dedicating resources focusing on improving flags and alerts on claims for DME and testing items and services.

These and other efforts need to be encouraged in order to seek to prevent telemedicine fraud from occurring, but at a minimum catch it when it does occur.

Assistant Professor at Cumberland School of Law, Samford University. Former Assistant United States Attorney and Healthcare Fraud Coordinator, United States Attorney's Office, Northern District of Alabama. J.D., Yale Law School; B.A., Wesleyan University.