TELEMEDICINE FRAUD: DON’T
LET IT HAPPEN TO YOU
By Karin Zaner, JD, Zaner Law PC
Telemedicine has swept through
Texas health care in the last several
years, and the recent COVID-19
pandemic has only increased its
momentum. Texas’s telemedicine
statute, which provides that Texas physicians
may practice telemedicine in Texas
without an initial face-to-face encounter to
establish a physician/patient relationship,
in now in full force. Hospitals, health care
facilities, and physician groups in Texas seem
to have made substantial investments in
the infrastructure, equipment, and training.
Arguably, telemedicine may now be necessary
for competitive advantage given that
patients now seem to expect it. And it’s not
just limited to Texas. The pull for Texas physicians
to do telemedicine in other states appears
strong. So how does a Texas physician
determine what he/she can do in telemedicine
versus what opportunities should be
declined or avoided completely?
Where Can You Practice
Telemedicine?
The Federation of State Medical Boards
makes it clear that “a physician must
be licensed, or under the jurisdiction, of
the medical board of the state where the
patient is located. The practice of medicine
occurs where the patient is located at the
time telemedicine technologies are used.
Physicians who treat or prescribe through
online services sites are practicing medicine
and must possess appropriate licensure in
all jurisdictions where patients receive care.”
In Texas, a physician licensed to practice
medicine in Texas may practice telemedicine
within Texas; that is, on patients located
in Texas at the time of the telemedicine encounter.
The Texas Medical Board (TMB) also
allows out-of-state physicians to provide
“episodic consultations” by telemedicine to
patients located in Texas at the time of the
telemedicine encounter if that physician
registers with the TMB and pays the required
fee for such license.
However, Texas physicians desiring to
practice telemedicine on patients located
in states outside of Texas at the time of the
telemedicine encounter should assume that
specific state-to-state licensure is required,
unless specific legal advice to the contrary
has been received. Keep in mind that the
issue of where a patient normally resides
appears to be irrelevant. What matters is
“where the patient is located at the time
telemedicine technologies are used.” If a
patient is in another state at the time of the
telemedicine encounter, a Texas physician
must be licensed in that state and comply
with the telemedicine laws of that state.
A physician can choose to obtain multiple
licenses in various states in order to address
this issue. But doing so can be cumbersome
and expensive, as a physician must apply,
receive, and maintain each such license
as well as understand how to comply with
the telemedicine laws of each particular
state, which may be varied and/or in flux.
That said, it is getting easier and more
convenient for physicians to be licensed in
multiple states, as many physicians may now
streamline their own individual licensing in
multiple states under the Interstate Medical
Licensure Compact. Under the Compact,
eligible physicians need only to complete
one application to receive separate
licenses from each state where they intend
to practice. At this point in time, many states
now participate in the Compact, including
Texas (which is now accepting applications).
However, even with an appropriate license
in another state, a Texas physician still needs
to understand what that particular state
requires in order to practice telemedicine.
This can be confusing, especially if a physician
has licenses in multiple states. This can
also make the physician more vulnerable to
telemedicine fraud schemes.
Beware of Telemedicine Fraud
Envision the following scenario: You are a
Texas physician with multiple out-of-state
licenses. You receive an email or telephone
inquiry from a third party (could even be a
reputable locum tenens company or other
entity) telling you that:
• As a physician, you could make some
extra money doing telemedicine by
working as an independent contractor
for a “telemedicine” company
• If you have multiple state licenses, doing
telemedicine would be perfect for
you given that you could help a lot of
patients in these different states
• An online portal would allow you easy
access to do patient “consults”
• The “telemedicine” company would
keep the medical records and do all the
billing
• You would be credentialed and trained,
and could work from the comfort of
your own home or anywhere you have
online access
• You wouldn’t even have to see or talk to
any patients
• You would get paid $50 per consult (the
amount could vary), and you could do
hundreds of these or even more each
week
• There are physicians all across the
country helping patients by doing
“telemedicine” in this way.
Intrigued, you look up the telemedicine
company (or the locum tenens or other
company offering the opportunity), which
has a very professional-looking website. Various
folks (including other physicians) who
are involved assure you that the telemedicine
company is completely legitimate and
that doing “telemedicine” in this way is the
wave of the future. You decide to find out
more so you submit your CV and references,
which are reviewed and confirmed. You are
interviewed by phone or videoconference.
You decide to accept and so you go through
the credentialing and training process,
which all seems legitimate. You are asked to
sign contracts and placement orders, which
appear to have been prepared by legal
counsel for the “telemedicine” company. The
paperwork you receive, including issuance
of malpractice insurance for your work, appears
in order. You are then told that your
shifts have been scheduled, and that there
are patient “consults” in the online portal
that need to be completed within 24 to 48
hours. You follow the instructions you are
given and complete your shifts. You then
receive your paychecks for the “telemedicine”
work that you have done timely and
as promised. This may go on for months or
even years. But then you get a notice from a
provider, a hospital or health care entity, the
TMB, or another third party (like the federal
government) that you are now suspected to
be involved in a fraudulent “telemedicine”
scheme. How could this have happened?
Red Flags and Recent
Telemedicine Schemes
The unfortunate reality is that fraudulent
“telemedicine” companies are luring physicians
into these types of schemes (which
oftentimes seem very legitimate), to which
even experienced and prudent physicians
may fall prey. But if a physician knows what
to look for, certain various red flags can be
recognized, as follows:
• Independent contractor relationships,
although employment and ownership
opportunities may also pose risk
• Online portal that maintains all medical
and billing records (without portal,
physician has no access)
ADVOCACY
22 | DALLAS MEDICAL JOURNAL • April 2022