SIU Today Summer 2021 - 21

Law Update
By Eric Moch
Federal Health Care Fraud Prosecution Spotlights the
Intersection of a Familiar Fraud Medium and New
Technology: Bribes for Unnecessary Durable Medical
Equipment Prescriptions in the Telehealth Context
Organized health care fraud is a billion-dollar industry driven by
shrewd and nimble wrongdoers who often manage to stay one step
ahead of investigators. U.S. health care spending exceeded $4 trillion
in 2020, and in a system that large, featuring claims distributed
through Medicare, Medicaid, group health plans and auto and
casualty insurers, opportunities to commit fraud abound. An old
standby health care fraud medium, into which wrongdoers have
breathed new life in recent years, is prescription durable medical
equipment ( " DME " ), including reusable orthotic neck, back and joint
braces. DME in injury claims is no longer confined to the occasional
soft neck collar. In the most active fraud hot spots today, a DME bill
in an injury claim can exceed $10,000 and include, at least according
to DME invoices, very sophisticated equipment.
Emerging at the same time as this renewed focus upon DME as an
instrument of fraud is telehealth, a promising advancement in health
care convenience. The popularity of telehealth is growing; it can be
easier for people to engage with physicians from the comfort of their
own home even in the best of times, but especially during a pandemic.
Patients in rural or health professional shortage areas may not have
other options. However, telehealth presents its own opportunities
for fraud and abuse, and we have not had to wait very long to see
what this might look like. Two recent health care fraud prosecutions
demonstrate, yet again, that the more things change, the more they
can stay the same.
Janae Harper and Mark Hill are nurse practitioners in Montana.
Both were affiliated with Integrated Support Plus, Inc., a telemedicine
company located in Spring Hill, Florida. Harper, Hill and Integrated
Support Plus, Inc. were Medicare providers, which required them to
comply with all Medicare-related laws, including the Anti-Kickback
Statute. Among the services Harper and Hill provided with Integrated
Support Plus were telehealth consultations with patients who suffered
from injuries and musculoskeletal conditions and the prescription
of medically necessary DME to those patients in appropriate cases.
Under Montana law, nurse practitioners enjoy prescriptive authority
to issue DME to patients without a licensed physician's oversight.
Medicare does not place onerous obstacles in front of a telemedicine
patient in need of an orthotic brace. A patient needs to undergo
a customary telehealth consultation with qualified healthcare
professional, who determines that prescription of DME is medically
necessary. Medicare then readily pays for the DME, as long as the
claim does not come about through kickbacks or bribes.
Harper and Hill, alas, did not clear this low bar. On September 3,
2020, a federal grand jury in Montana indicted both for conspiracy
to commit healthcare fraud (18 U.S.C. 1349) and health care fraud (18
U.S.C. 1347 & 2(b)). Both charges carry sentences of up to ten years
in prison and a $250,000 fine.
The grand jury determined that between the fall of 2017 and spring
of 2019, Harper and Hill, in connection with their affiliation with
Integrated Support Plus, Inc. and its call centers, knowingly engaged
in a scheme to collect bribes from various DME providers in
exchange for DME prescription orders. However, many of their DME
prescriptions were not based on any sort of patient examination, but
rather a very brief telephone conversation well short of a customary
telehealth encounter, or in some instances, no patient interaction at
all. Harper and Hill went on to prescribe DME often without regard
for medical necessity and then billed Medicare. Together, they placed
orders for a staggering 14,700 braces during the relevant time period.
The purpose of the scheme was not better health outcomes for
patients. The purpose was to bill Medicare in high volume and
see what Medicare would pay. It worked well: Medicare paid
over $4 million as a result of Harper's fraud and over $5 million
as a result of Hill's.
In April of this year, both Harper and Hill pled guilty to conspiracy.
As of this writing, they have yet to receive their sentences. Nor has
the Montana Board of Nursing determined what licensure sanction is
appropriate for them. It seems probable that a key component of their
sentences will be cooperation with the Department of Justice in the
prosecution of others who helped orchestrate the scheme.

SIU Today Summer 2021

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