Telehealth Update: Controlled Substances & E/M Claims

Prior to the COVID-19 public health emergency (“PHE”), the federal Ryan Haight Act allowed a provider to prescribe controlled substance medications to a patient only after conducting an in-person evaluation of that patient (with limited exceptions). At the beginning of the PHE, the Drug Enforcement Agency (“DEA”) granted temporary exceptions to the in-person requirement and …

False Claims Act “Knowledge” Is a Subjective Standard

The Federal False Claims Act (“FCA”) allows private parties to bring lawsuits in the name of the federal government against defendants who allegedly “knowingly” present a false claim to the government for payment.  The question for courts has been what standard should be applied to evaluate a defendant’s “knowledge.”  The US Supreme Court recently clarified …

DEA Reverses Course and Extends Telehealth Prescriptions of Controlled Substances

Reversing previously proposed rules, the DEA recently issued new guidance allowing the continued use of telehealth when prescribing controlled substances following the end of the Covid-19 public health emergency (“PHE”). Waivers of the requirement for in-person encounters that were in place during the PHE will remain in effect for practitioner-patient telehealth relationships established as of …

Sixth Circuit Defines False Claims Standards

The Federal False Claims Act (“FCA”) imposes civil liability for presenting a false claim to the government for payment. The Federal Anti-Kickback Statue (“AKS”) prohibits medical providers from making referrals in return for “remuneration.”  In a recent decision by the Sixth Court of Appeals, the Court found that a hospital’s decision not to hire an …

Proposed Rules Could Mean The End Of Non-Compete Agreements

Originally published in Healthcare Michigan, Volume 40, No.  2 Non-compete provisions are common in healthcare employment agreements. These provisions are designed to prohibit an employed or contracted provider from competing against the contracting entity by working for or starting a competing business within a certain geographic area for a set period of time. As the Michigan …

Telehealth Update: Telehealth Waivers Post-PHE and Fraud and Abuse

The current Public Health Emergency expiration deadline is this month.  However, the Secretary of the Health and Human Services indicated he would provide a 60-day notice before ending the PHE in order to minimize disruptions and potential loss of government and private insurance coverage.  That notice has not yet occurred.  Therefore, we expect another 90 …

Post-Pandemic HIPAA Guidelines for Audio-Only Telehealth

The Department of Health and Human Services (“HHS”) recently announced guidelines for the application of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) to audio-only telehealth encounters following the end of the declaration of the COVID-19 public health emergency (“PHE”). As reported here at the beginning of the Covid-19 pandemic, the HHS Office …

Recent Guidance on Enforceability of Physician Non-Competes

As previously reported here, courts are known to “blue pencil” terms of non-compete provisions in employment agreements that do not appear to further legitimate business interests. Earlier this year, an Ohio appellate court affirmed the lower court’s modification of the scope and duration of a challenged non-compete provision found to be partially unreasonable. In Metrohealth …

Telehealth Fraud Year in Review

The Department of Justice recently released their Year in Review summary of activity by the Healthcare Fraud Unit, detailing enforcements efforts related to some of the more significant telehealth-related fraud claims in 2021. The DOJ’s litigation unit significantly expanded last year to support the Fraud Unit, resulting in material criminal prosecutions and sentences. Since 2019, …