While the COVID-19 pandemic has not yet peaked in the United States, federal and state prosecuting and regulatory agencies are already devoting resources to investigating and prosecuting fraud, waste and abuse associated with COVID-19 testing, treatment and ancillary services. Healthcare providers, health insurers and clinical laboratory facilities should be particularly aware of these activities.
Specifically, regulatory agencies are investigating and prosecuting:
In the understandable rush to test and treat in order to quell the pandemic and save lives, it will remain important for healthcare providers that order the COVID-19 tests, and the clinical laboratories that perform them, to adhere to the evolving U.S. Centers for Disease Control and Prevention (CDC) guidelines for testing and U.S. Food and Drug Administration (FDA) regulations for safety and efficacy. In addition, as telemedicine becomes more prominent in the diagnosis and treatment of COVID-19, primary care physicians and other healthcare providers performing services should familiarize themselves with the recently modified telehealth rules.
Clinical laboratories billing federal healthcare programs and/or commercial payors must ensure that there is a valid medical order for each test billed. While some regulations have been temporarily relaxed due to the public health emergency, medical necessity rules are still in effect.
When performing COVID-19 test for "cash patients" who chose to cover the cost of testing on their own, clinical laboratories should educate the cash patient on the medical criteria for testing and document acknowledgement that no third-party payor will be billed for the test.
The healthcare industry should be especially wary of retaining independent healthcare marketers or marketing groups for the promotion of COVID-19 testing. These sorts of activities, particularly those involving paying a percentage of collections or a fee per sample to a marketer or marketing group, bear significant risks under the federal Anti-Kickback Statute, state anti-kickback statutes and the Eliminating Kickbacks in Recovery Act of 2018 (EKRA).
Holland & Knight has a comprehensive team of healthcare regulatory compliance attorneys that can help healthcare providers, commercial payors and clinical laboratories remain both compliant and competitive during this public health crisis. Contact one of the authors for additional information and guidance.
DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice
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