April 2022 • DALLAS MEDICAL JOURNAL | 23
• All patient intake, interface, and billing
functions are done for the physician
(physician has no control over these
functions)
• Physician does not see or talk to patients
(so how can a patient/physician relationship
be established?)
• Unfamiliar or new companies (usually out
of state, sometimes all over the nation)
that may be connected to locum tenens
or other placement companies, even
reputable ones
• Payment of $25-100 per “consult” (or even
more), and/or
• When credentialing, MD allows access
to NPI number and e-signature, which
can be placed on prescriptions without
authorization.
The federal government has been monitoring
the potential for fraud and abuse
involving telemedicine for years now. In 2019,
the U.S. Department of Justice (DOJ) issued
indictments of physicians and others in
what was named “Operation Brace Yourself,”
a telemarketing/telemedicine scheme in
which Medicare benefi ciaries were allegedly
duped into signing up for unnecessary genetic
tests, durable medical equipment (DME),
and prescriptions, causing billions of dollars
of alleged losses to the federal government.
More recently, “Operation Happy Clickers” has
resulted in similar types of DOJ indictments. In
this alleged scheme, physicians were paid by
“telemedicine” companies to review and sign
orders as a “telemedicine” visit, and the orders
were then sold to DME supply companies and
laboratories. Even if a physician is not criminally
indicted or called to be a witness due
to involvement, a physician’s participation in
these types of schemes is usually detected by
insurance providers, hospitals, or health care
entities at which they practice. The involved
physician will also likely be reported to the
appropriate state medical board, which will
no doubt be very problematic for a physician.
The simple fact is that fraudsters want the NPI
numbers and e-signatures of physicians — so
make sure that you do not blindly trust these
types of third parties and unwittingly become
a tool for telemedicine fraud.
Avoiding Fraud and Doing
Telemedicine Right in Texas
Telemedicine poses legal risk given its novelty
and dependence on technology, which
most physicians do not fully understand. To
guard against fraud, Texas physicians must
also know the specifi cs of Texas telemedicine
laws as well as the telemedicine laws in any
other states that they may be licensed in (if
they intend to practice telemedicine there).
Generally, avoiding liability for fraud and
abuse related to telemedicine care in Texas
is no diff erent from in-person treatment.
A physician practicing telemedicine must
develop protocols related to fraud and abuse
as required under Texas law. And as with inperson
visits, during telemedicine visits, a Texas
physician must obtain the patient’s informed
consent and provide a notice of privacy practices
under HIPAA, as well as post the required
TMB complaint notice.
Under the Texas telemedicine statute, a
“telemedicine medical service” is defi ned as
“a health care service delivered by a physician
licensed in this state, or a health care
professional acting under the delegation and
supervision of a physician licensed in this state,
and acting within the scope of the physician’s
or other health professional’s license to
a patient at a diff erent physical location than
the physician or health professional using telecommunications
or information technology.”
Generally, there are four telemedicine modalities
currently in use in Texas:
• interactive audio-video technology,
including videoconferencing in real time
between a physician and a patient; diagnosis
and treatment options are off ered
to a patient
• store-and-forward technology, including
transmission of digital clinical information
(such as diagnostic images, medical histories,
laboratory/pathology results, and
prescriptive histories) from the patient’s
medical fi le to a physician at a diff erent
physical location, which can be asynchronous
(i.e., not in real time)
• remote patient monitoring technology,
including collecting medical data from
remote patients to be used for diagnosis
and treatment, and
• mobile health technology, including use
of cell phones, mobile devices, wearable
devices, and web applications to monitor
and track health conditions.
The Texas telemedicine statute provides
that “a health professional providing a
health care service or procedure as a telemedicine
medical service or a telehealth
service is subject to the standard of care that
would apply to the provision of the same
health care service or procedure in an in-person
setting.” So if a physician cannot uphold
the same level of care as an in-person visit,
telemedicine services should not be used. This
means that the physician must determine if
it is appropriate to use telemedicine for every
visit. In each case, physicians should consider
the following non-exclusive factors:
• the type of treatment or diagnostic
procedure
• the seriousness of the patient’s condition
• the specifi c chronic conditions of the
patient
• the specifi c physical and mental abilities
of the patient
• the particular telemedicine modality
used
• the quality, reception, and age of the
telemedicine equipment
• the quality of the visual exam
• the possible need for a telepresenter to
assist the patient
• the availability of the patient’s diagnostic
and medication history, and
• existing defi ciencies in obtaining accurate
clinical information for the patient.
Again, initial in-person visits are not mandatory,
as the Texas telemedicine statute
does not have an in-person consultation
requirement to establish a physician-patient
relationship. And while the Texas telemedicine
statute allows for the various telemedicine
modalities described above, not all modalities
are subject to reimbursement, as some
may not qualify for coverage under Medicare
or private-pay benefi t plans. Please also note
that telemedicine is prohibited for abortion in
Texas.
Conclusion
Given the recent COVID-19 pandemic,
telemedicine appears to now be woven into
the proverbial fabric of health care in Texas as
well as across the nation. While telemedicine
laws in various states are still developing, all
physicians must guard against the various
fraudulent schemes that unfortunately come
with these new telemedicine technologies. For
Texas physicians, this involves understanding
where they can practice telemedicine (i.e.,
on patients who are located in Texas at the
time of the telemedicine encounter). Texas
physicians must also determine whether a
telemedicine visit is appropriate for any given
patient and should not use telemedicine as
a shortcut to diagnosis or treatment that
should be done in-person. Finally, Texas physicians
should guard against signing orders
presented by a third party, as the physician
must still review the patient’s information and
determine that the specifi c patient needs a
particular type of treatment or device when
doing telemedicine. While many of these
same guidelines apply outside of Texas, Texas
physicians desiring to practice telemedicine
in other states should assume that specifi c
state-to-state licensure is required and obtain
legal advice from counsel licensed in such
state regarding applicable telemedicine laws.
Finally, a physician must be very protective
of his/her professional record and reputation
at all times, which means getting legal help
from experienced physicians’ counsel before
signing on to anything resembling possible
“telemedicine” fraud. Your professional record,
including your medical license, depends on it!
DMJ
References:
1. See Texas Occ. Code Chapter 111.
2. See www.fsmb.org/Media/Default/PDF/
FSMB/Advocacy/FSMB_Telemedicine_
Policy.pdf (emphasis in bold added).
3. See https:/www.imlcc.org.
4. See Texas HB 1616, which now facilitates
licensing under the Compact for Texas
physicians.
5. Although physicians with multiple state
licenses appear more vulnerable to these
situations, please note that telemedicine
fraud could certainly also happen to a
physician who is licensed only in one state.
6. The use of the term “telemedicine” in this
article denotes telemedicine technologies
that are suspected to not comply with
telemedicine requirements of applicable
state law.
7. Again, Texas physicians desiring to
practice telemedicine in other states
should assume that specifi c state-tostate
licensure is required and obtain
legal advice from counsel licensed in such
states regarding applicable telemedicine
laws.
8. See Texas Occ. Code §111.001(4).
9. See Texas Occ. Code §111.007(a).
10. For additional considerations, see https:/
www.texmed.org/TelemedicineLaw/.
11. See Texas Occ. Code §111.055(c).