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Telemedicine Liability Issues: The Dark Side

By: Vipul Kella, MD, MBA, FACEP

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Recently, Feds have charged almost 350 people for submitting $6 billion in fraudulent claims. One of the largest initiatives, Operation Rubber Stamp, targeted a network of telemedicine fraud totaling over 4.5 billion in false claims. Operation Rupper stamp is the most-publicized action against telemedicine providers to date. A sting operation of this size adds a dose of reality and caution against telemedicine’s many benefits.

Relaxed Policies

Back in the spring, in the early stages of COVID-19, policymakers loosened up on longstanding telemedicine regulations. Telemedicine had traditionally been envisioned too to serve patients with urgent needs who lived in hard-to-reach rural areas so that they could continue to receive medical care for chronic conditions. CMS was rarely allowing billing outside of these guidelines.

The pandemic left policymakers scrambling to relax regulatory policies to allowed providers the opportunity to continue to treat patients while clinics and medical practices closed. Federal officials allowed telemedicine providers to waive patient deductible and copayments. Providers were also allowed to be reimbursed on various virtual platforms, such as Zoom, FaceTime, and Skype. These new guidelines removed barriers to entry and allowed many new players to enter the market.

Ambiguous Doctor-Patient Relationship

The biggest concern in the current telemedicine landscape is for providers to claim a doctor-patient relationship that does not exist. A common theme in fraud cases has been providers who are willing to establish only a cursory patient-physician relationship and order medical supplies or equipment in order to engage in kickback schemes from a device supplier or laboratory.

Advanced Practice

Telemedicine waivers are likely to continue in their current state as lawmakers are being pressured to make the changes permanent. While there are obvious benefits for more efficient and cost-effective care, there are ampler opportunities for abuse in telemedicine as well. Illegal online pharmacies, kickbacks schemes, and aggressive marketing schemes targeting vulnerable populations are a few of the many potential threats to defraud Medicare. Cases such as Operation Rubber Stamp are likely just the beginning of many investigations by Feds and should serve notice to bad actors looking to taking advantage of the new guidelines.

Vipul Kella, MD, MBA, FACEP is a board-certified Emergency Medicine Physician, who has been practicing for 15 years. He is a Fellow, of the American College of Emergency Physician, and is licensed in Advanced Cardiac Life Support (ACLS) and Advanced Trauma Life Support (ATLS). Dr. Kella has served as a medical expert for 10 years. He has reviewed over 100 cases, and spent over 1,000 hours on case reviews and preparing reports. He is dedicated to providing expertise to clients in a variety of areas, including medical malpractice, personal injury, forensics, disability, and others.

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