Written by Zachary Newland, Founding Partner. Last updated August 28, 2026

Medicare Telehealth Flexibilities Criminal Risks

On This Page

• What Medicare Telehealth Flexibilities Mean for Providers
• How Medicare Telehealth Flexibilities Work Under Current Law
• Where Telehealth Billing Errors Become Federal Criminal Exposure
• What to Do if Your Telehealth Practice Faces a Medicare Review or Investigation
• How Evergreen Attorneys Can Help With Medicare Telehealth Investigations
• Frequently Asked Questions

Medicare telehealth flexibilities have expanded billing opportunities for providers across the country, but they have also created a compliance landscape where documentation failures and billing errors can trigger federal criminal investigations.

Providers who billed telehealth services during lapse periods, relied on audio-only sessions without proper documentation, or submitted claims without sufficient medical-necessity support now face heightened scrutiny from Medicare contractors, the Office of Inspector General (OIG), and the Department of Justice. If your practice has received a post-payment review or audit request tied to health care fraud allegations involving telehealth, the consequences extend well beyond claim denials.

Contact Evergreen Attorneys today at (303) 948-1489 if you are being audited by Medicare or need a confidential federal criminal case evaluation.

What Medicare Telehealth Flexibilities Mean for Providers

Medicare telehealth flexibilities are temporary policy changes, originally introduced during the COVID-19 public health emergency, that removed longstanding geographic and originating-site restrictions on Medicare-covered telehealth services. Under these flexibilities, patients can receive telehealth visits from home rather than traveling to an approved originating site (read: doctor’s office).

The flexibilities also expanded the categories of practitioners eligible to bill telehealth services and, subject to CMS guidance, permitted certain audio-only Medicare telehealth billing when video technology is not feasible for the patient.

Congress has extended these flexibilities multiple times. As of the most recent statutory extension, the flexibilities remain in effect through December 31, 2027. CMS has issued guidance, including a February 2026 FAQ, confirming retroactive application for certain provisions and clarifying documentation expectations during periods when flexibilities briefly lapsed before being renewed.

For providers, the practical effect is significant: telehealth billing volume grew rapidly, and the rules governing what could be billed, by whom, and under what documentation standards shifted repeatedly. That shifting regulatory environment is now the basis for a growing number of Medicare post-payment audits and, in some cases, federal investigations into whether telehealth claims were submitted accurately and with adequate support.

How Medicare Telehealth Flexibilities Work Under Current Law

Under the current extensions, several key rules govern Medicare telehealth billing:

• Patient location: Beneficiaries (a/k/a patients) may receive telehealth services from home. The pre-pandemic requirement that patients be located at an approved originating site in a rural area does not apply through the end of the extension period.
• Eligible practitioners: The range of practitioners who can bill Medicare for telehealth services has been expanded beyond physicians to include certain nurse practitioners, physician assistants, clinical psychologists, and other qualified providers.
• Audio-only visits: Medicare covers some audio-only telehealth visits when video is not available to the patient, but the provider must document why audio-only was used and must meet all other medical-necessity and documentation requirements.
• Place-of-service codes and modifiers: Providers must use correct telehealth place-of-service codes and modifiers. Errors in coding, even when the underlying service was legitimately provided, can flag claims for audit.
• Documentation of medical necessity: Every telehealth visit must be supported by documentation equivalent to what would be required for an in-person visit, including the clinical basis for the service, the technology used, and the patient’s and provider’s locations at the time of the visit.

Providers who billed telehealth services during brief lapse periods between statutory extensions face particular risk. If flexibilities had technically expired for days or weeks before Congress renewed them, claims submitted during those windows may be reviewed to determine whether the provider had authority to bill under telehealth rules at the time of service.

Where Telehealth Billing Errors Become Federal Criminal Exposure

Most providers think of Medicare audits as administrative processes that result in claim denials or repayment demands. That is often the case. But when the government identifies patterns of unsupported telehealth billing, especially patterns suggesting that claims were knowingly submitted without medical necessity or with false documentation, the matter can escalate from a civil audit to a federal criminal investigation.

The primary criminal statute at issue is 18 U.S.C. § 1347, the federal health care fraud statute. It criminalizes knowingly and willfully executing, or attempting to execute, a scheme to defraud any health care benefit program or to obtain money or property from such a program by false or fraudulent pretenses. Penalties include imprisonment, substantial fines, restitution, and mandatory exclusion from federal health care programs.

The government’s theory in telehealth fraud cases typically follows one of several patterns:

1. Billing for services not rendered: Submitting claims for telehealth visits that did not occur, or that were so brief or superficial that no meaningful clinical service was provided.
2. Fabricated or insufficient documentation: Creating or maintaining records that do not accurately reflect what happened during a telehealth encounter, including falsified notes on medical necessity.
3. Improper use of audio-only billing: Billing for audio-only visits without documenting why video was not feasible or without meeting CMS requirements for audio-only coverage.
4. Lapse-period claims: Submitting telehealth claims during periods when statutory flexibilities had expired and the provider lacked independent authority to bill under pre-pandemic telehealth rules.

Civil enforcement compounds this exposure. The False Claims Act allows the government to pursue treble damages and per-claim penalties for knowingly false claims. Separately, 42 U.S.C. § 1320a-7k(d), the 60-day rule, requires providers to report and return identified overpayments within 60 days. Failure to do so can be treated as a reverse false claim, adding another layer of liability. Providers who discover potential overpayments during an internal review and fail to act promptly risk converting what started as a billing error into a fraud allegation. Understanding this intersection is critical for anyone navigating telemedicine and federal enforcement risks.

Evergreen Attorneys won 9-0 in the U.S. Supreme Court in United States v. Hemani in June 2026, reflecting the firm’s capacity to handle complex federal enforcement matters at the highest level.

What to Do if Your Telehealth Practice Faces a Medicare Review or Investigation

If your practice receives a Medicare post-payment review, a records request from OIG, or any communication suggesting a federal investigation into your telehealth billing, take these steps in order:

1. Do not ignore the request or treat it as routine. A post-payment review of telehealth claims is not the same as a standard billing correction. Treat every audit communication as potentially consequential.
2. Preserve all telehealth records immediately. This includes visit notes, scheduling records, technology logs showing whether video or audio-only was used, patient consent documentation, and any internal compliance guidance your practice followed during lapse periods.
3. Identify the scope of the review. Determine which claims, dates of service, and billing codes are at issue. If the review covers lapse periods or audio-only visits, your documentation burden is higher.
4. Assess potential overpayments and the 60-day rule. If your internal review reveals overpayments, evaluate your obligations under 42 U.S.C. § 1320a-7k(d). Retaining identified overpayments beyond 60 days risks False Claims Act internal investigations and overpayments exposure.
5. Do not submit written responses or produce records without legal guidance. What you say and produce in response to an audit or investigation can be used in subsequent civil or criminal proceedings.
6. Engage experienced federal defense counsel before responding. An attorney who understands both Medicare billing and federal criminal procedure can help structure your response to reduce the risk that an administrative review becomes a criminal referral.

How Evergreen Attorneys Can Help With Medicare Telehealth Investigations

Evergreen Attorneys represents healthcare providers facing Medicare audits, post-payment reviews, and federal investigations where telehealth billing practices are under scrutiny. The firm’s federal criminal defense attorneys assess the scope of government inquiries, identify where telehealth documentation may create criminal exposure under 18 U.S.C. § 1347, and develop strategies that address both administrative and criminal risks simultaneously.

Founding Partner Zachary Newland has appeared as counsel of record in more than 130 federal cases since 2016. His practice encompasses federal fraud crimes and false claims act investigations, including matters involving health care fraud allegations, OIG investigations, and DOJ enforcement actions targeting telehealth providers. Evergreen Attorneys serve as Colorado healthcare fraud defense attorneys and represents clients nationwide in federal courts.

Frequently Asked Questions

What are Medicare telehealth flexibilities and why do they matter for compliance?

Medicare telehealth flexibilities are temporary statutory and regulatory changes that removed pre-pandemic restrictions on where, how, and by whom Medicare telehealth services can be delivered and billed. They matter for compliance because providers who expanded telehealth billing under these flexibilities must document every claim as thoroughly as they would an in-person visit. When flexibilities shift, lapse, or expire, claims submitted without proper authority or documentation can be flagged in post-payment reviews and, in serious cases, form the basis for federal health care fraud allegations.

Can audio-only telehealth billing create federal criminal exposure?

Yes. Medicare currently covers certain audio-only telehealth visits, but the provider must document why video was not feasible for the patient and must meet all medical-necessity requirements. Patterns of audio-only billing without adequate documentation, or audio-only billing for services that CMS guidance does not cover under that modality, can be interpreted as knowingly false claims. If the government concludes that a provider submitted audio-only claims with knowledge that they were unsupported, 18 U.S.C. § 1347 and the False Claims Act both apply.

What penalties can result from Medicare telehealth billing errors?

The consequences range from administrative claim denials and repayment demands to civil False Claims Act liability with treble damages and per-claim penalties. At the most serious level, federal health care fraud charges under 18 U.S.C. § 1347 can result in imprisonment, substantial fines, court-ordered restitution, and mandatory exclusion from all federal health care programs. The 60-day overpayment rule under 42 U.S.C. § 1320a-7k(d) adds further risk: retaining identified overpayments beyond the statutory window can be treated as a reverse false claim.

When should a healthcare provider involve federal defense counsel in a telehealth billing matter?

A provider should involve federal defense counsel as soon as a Medicare post-payment review or records request suggests scrutiny beyond routine billing corrections. Specific triggers include requests covering lapse-period claims, audio-only visit documentation, or patterns of billing across multiple patients or time periods.

If OIG, DOJ, or a Medicare contractor contacts your practice about potential fraud, or if you identify overpayments that may implicate the 60-day rule, the decision to engage counsel before producing records or submitting written responses is critical. Early involvement of counsel experienced in federal healthcare fraud defense can shape the trajectory of the matter and reduce the likelihood that an audit escalates into a criminal referral.

If you are facing a Medicare telehealth audit, post-payment review, or federal investigation into your telehealth billing practices, contact Evergreen Attorneys at (303) 948-1489 for a confidential case evaluation with a federal criminal defense lawyer.