Post By: Devin Schindler, Of Counsel, Warner Norcross + Judd
As the dust begins to settle from the nation’s herculean effort to respond to the Covid-19 pandemic, the Department of Justice has launched several new enforcement efforts to prosecute individuals and entities which took advantage of the crisis for personal gain. The DOJ calls its enforcement response to Covid-19 fraud “historic” and promises to prosecute anyone who engages in such fraud “to the fullest extent of the law.”  Over 500 individuals has already been charged with Covid-related fraud; with many more likely on the way. Critically, the DOJ is leveraging its vast databases to look for suspicious billing trends. This means that honest providers who happen to have unusual billing patterns—regardless of the cause—can easily get caught up in the DOJ’s expansive dragnet.
The challenge, as always, is to distinguish between honest mistakes and true criminal intent. What should providers who were faced with any number of new rules designed to facilitate a rapid response to the pandemic do to insure they remain on the right side of that line?
Although the enforcement trends are still developing, the DOJ appears to be focusing on several areas that are potentially rife for abuse, including:
1) Providers participating in the Center for Disease Control and Prevention’s Covid-19 vaccination program who charge for vaccinations. Entities that choose to participate in the CDC’s program are required to enter into a provider agreement in which they agree to not charge for administering vaccinations. In return, the provider receives separate reimbursement. The Department of Justice believes that providers, either with criminal intent or through negligence, have been violating their provider agreements by charging recipients for all or some of the cost of the vaccine. A well-meaning provider could easily make the mistake of entering a normal charge for an office visit for an individual receiving the vaccination, thereby impermissibly billing the patient for the service. Providers who do so face suspension or termination from the CDC’s COVID-19 Vaccination Program and potential criminal and civil penalties.
Responsible providers should take a moment to insure that their billing systems were set up correctly from the beginning to not generate separate charges for administering the vaccine.
2) Using Covid testing as a vehicle to provide medically unnecessary ancillary testing. Multiple providers have been accused of taking saliva and blood samples from patients seeking Covid testing and then using those samples to provide unnecessary genetic, allergy, and respiratory pathogen testing. Particularly problematic is the practice of bundling Covid-19 testing with allergy testing. A patient presenting with respiratory distress logically could receive both forms of testing and there is nothing per se wrong with a provider ordering multiple tests for a patient presenting with co-morbidities. The key is documenting the medical necessity for ordering additional tests for a patient presenting with Covid symptoms. Failure to provide separate documentation justifying the additional testing can expose a practitioner to enforcement actions.
3) Abusing the relaxed telemedicine rules. The relaxation of the telemedicine rules provides fertile ground for fraud. The absence of a physical encounter makes it easier for fraudfeasors to bill for nonexistent or medically unnecessary “sham” encounters with patients. The DOJ believes—correctly or otherwise—that this kind of fraud is occurring relatively frequently. Providers again need to be careful to properly document all telemedicine encounters; just as if they were providing “in-person” treatment.
4) Misuse of Covid-19 emergency override codes. The Secretary of the HHS declared a public health emergency (PHE) in the entire United States on January 31, 2020, which allowed the agency to issue blanket “override codes” on a number of actions which previously required pre-approval.  For example, one of these override codes allowed hospitals to provide clinical staff services in a patient’s home and then bill the encounter as a Hospital Outpatient Department service. Other override codes allowed practitioners to immediately prescribe medications or change dosing schedules in a way that would formerly require pre-approval. The DOJ is concerned that practitioners may be misusing these codes to provide services and medication in a medically unnecessary fashion without the usual oversight.
5) Failure to follow correct screening procedure for employees in care facilities. In a recent enforcement action, the DOJ clawed back $214,200 in Medicaid funds received by a long-term care facility that was racked by Covid which allegedly failed to properly screen its employees. The action is somewhat unusual because the improper actions were not tied directly to any particular reimbursement claims paid to the facility. This is a particular issue for nursing homes and long term care facilities; which should remain vigilant in screening employees for the disease. 
The DOJ’s “historic” effort to combat Covid-19 related fraud is just beginning. The relaxed rules borne of the need to provide a rapid response to the disease also created opportunity for the criminally minded and new landmines for well-meaning but overwhelmed providers.
 Justice Department Takes Action Against COVID-19 Fraud (March 26,2021)
 U.S. Attorney’s Office and HHS-OIG Advise COVID-19 Vaccine Providers Not to Charge Individuals Seeking COVID-19 Vaccines (May 17, 2021)
 See note 1, supra.
 Medicare FFS Response to the PHE on the COVID-19 MLN Matters Number: SE20011 (May 12, 2021)
 Dubuque Care Facility’s Owner Agrees to Repay Federal Medicaid Funds to Resolve Allegations Relating to COVID-19 Screening Procedures (May 19, 2021)