The U.S. Justice Department recently announced that it recovered more than $3 billion in settlements and judgments in civil health care and war-related fraud cases in the last fiscal year. The vast majority of the $3 billion—$2.8 billion—was recovered under the whistleblower provisions of the False Claims Act (FCA). Additionally, of the $3 billion, $2.4 billion involved health care fraud, most of which was attributed to the Medicare and Medicaid programs. Since January 2009, the Department has recovered $8.7 billion ($6.6 billion attributable to federal health care dollars), which is the largest three year total in the Department’s history.
The record setting recoveries under the whistleblower provisions of the FCA paralleled a sharp increase in the number of whistleblower lawsuits filed, which, after staying in the 300s to low 400s range for last decade, hit an all-time high at 638 in the last fiscal year. The Patient Protection and Affordable Care (PPACA) has added additional incentives for whistleblowers to report fraud in this manner.
But the federal government has not lost focus on private health insurance fraud, and the goverment recently reached a plea agreement with a Texas doctor who pleaded guilty to defrauding private insurers. The government pursued the case under federal mail fraud and conspiracy laws, and the doctor was sentenced to seventy months and sixty months of incarceration, respectively, and ordered to pay $3,821,082in restitution.
This case serves as a reminder that even though the primary focus has been recovering federal health care dollars—which has been viewed by many as a great success—private health insurance fraud is not beyond the scrutiny of federal prosecutors.
Thursday, December 29, 2011
Monday, December 19, 2011
Delaware Focused on Cutting Medicaid Costs
In these tough economic times, courts across the country have been addressing challenges to State action aimed at reducing Medicaid costs. In October, the US Supreme Court heard argument (but has not yet issued a decision) in Douglas v. Independent Living Center to answer the question of whether or not Medicaid recipients and providers are able to sue States that attempt to reduce reimbursement rates required by the Medicaid Act. The case arose when California, in an attempt to save money, reduced rates that it would pay doctors and hospitals participating in Medicaid. The federal requirement for Medicaid reimbursement rates is that payments must at least be high enough to entice healthcare providers to take Medicaid patients. More recently, Washington state doctors were victorious in a challenge to a state rule limiting Medicaid enrollees to three emergency room visits a year for conditions that the state labeled “non-emergent.” However, the judge’s order in that case was procedural in nature, and the Washington State Health Care Authority, the state’s Medicaid agency, is likely to initiate another rulemaking procedure in an attempt to reduce what the state deems unnecessary emergency room care for Medicaid enrollees by $70 million in two years.
State efforts to cut Medicaid costs are not new. While the federal government contributes half the cost of the program, Medicaid consumes 22% of the average state’s annual budget; this is more than states pay for education, transportation, and prisons. As we see downturns in the national economy, more individuals lose their jobs and become eligible for the program; and in times where the state sees less revenue from tax dollars, it is charged with paying more into their respective programs. These effects are far reaching and are impacting states all over the country. Reportedly, Massachusetts no longer covers restorative dental care and dentures and Washington no longer covers eyeglasses or hearing aids. Delaware is no different.
Currently, Medicaid covers almost 25% of Delaware’s population and some opine that our system is broken, with a $600 million bill this year alone and an expectation that more than 35,000 Delawareans will be newly eligible in fiscal year 2013. As reported by the Wilmington News Journal, the Delaware Commission on Medicaid Cost/Health Care Containment, a 22-member commission, recently met to vote on more than two dozen ideas meant to control the rising costs of the program. But after five months of debate, some are disappointed with how little was accomplished. To read the full article, visit http://www.delawareonline.com/article/20111215/BUSINESS13/112150326/Short-list-fixes-left-Medicaid.
Some of the Commission’s recommendations include:
• Taxing sugary drinks to raise money for Medicaid and discourage the consumption of such products
• Support for “medical homes” that enable better management of patient care
• Adopting a waiver plan for retired state employees
• Increasing the use of electronic prescriptions and medical records
• Adopting a reciprocity agreement with other states to attract more dentists to Delaware
Some of the ideas the Commission rejected include:
• Reducing reimbursement rates for lab fees
• Reducing reimbursement rates for non-urgent visits to the emergency room or limiting non-urgent visits to three per year
• Imposing standards on Medicaid recipients to reduce lifestyle choices such as smoking and setting standards for nutrition and exercise (Federal regulations forbid imposing higher costs for these reasons)
It is important for Delaware physicians to be on notice of legislation, rulemaking or any policy changes affecting Medicaid reimbursement. Additionally, in such cash-strapped times, it is more likely for the State to increase efforts to recover overpayments. Healthcare providers should be ready to respond to investigations and audits aimed at recovering Medicaid payments throughout the State. As more Delawareans become eligible for Medicaid, the State will continue to focus on how to cut costs and providers should be keenly aware of how such changes will affect their practice and patient care.
State efforts to cut Medicaid costs are not new. While the federal government contributes half the cost of the program, Medicaid consumes 22% of the average state’s annual budget; this is more than states pay for education, transportation, and prisons. As we see downturns in the national economy, more individuals lose their jobs and become eligible for the program; and in times where the state sees less revenue from tax dollars, it is charged with paying more into their respective programs. These effects are far reaching and are impacting states all over the country. Reportedly, Massachusetts no longer covers restorative dental care and dentures and Washington no longer covers eyeglasses or hearing aids. Delaware is no different.
Currently, Medicaid covers almost 25% of Delaware’s population and some opine that our system is broken, with a $600 million bill this year alone and an expectation that more than 35,000 Delawareans will be newly eligible in fiscal year 2013. As reported by the Wilmington News Journal, the Delaware Commission on Medicaid Cost/Health Care Containment, a 22-member commission, recently met to vote on more than two dozen ideas meant to control the rising costs of the program. But after five months of debate, some are disappointed with how little was accomplished. To read the full article, visit http://www.delawareonline.com/article/20111215/BUSINESS13/112150326/Short-list-fixes-left-Medicaid.
Some of the Commission’s recommendations include:
• Taxing sugary drinks to raise money for Medicaid and discourage the consumption of such products
• Support for “medical homes” that enable better management of patient care
• Adopting a waiver plan for retired state employees
• Increasing the use of electronic prescriptions and medical records
• Adopting a reciprocity agreement with other states to attract more dentists to Delaware
Some of the ideas the Commission rejected include:
• Reducing reimbursement rates for lab fees
• Reducing reimbursement rates for non-urgent visits to the emergency room or limiting non-urgent visits to three per year
• Imposing standards on Medicaid recipients to reduce lifestyle choices such as smoking and setting standards for nutrition and exercise (Federal regulations forbid imposing higher costs for these reasons)
It is important for Delaware physicians to be on notice of legislation, rulemaking or any policy changes affecting Medicaid reimbursement. Additionally, in such cash-strapped times, it is more likely for the State to increase efforts to recover overpayments. Healthcare providers should be ready to respond to investigations and audits aimed at recovering Medicaid payments throughout the State. As more Delawareans become eligible for Medicaid, the State will continue to focus on how to cut costs and providers should be keenly aware of how such changes will affect their practice and patient care.
Friday, December 2, 2011
Medicare Stops Paying for Most Urine Drug Screens
Highmark Medicare Services has issued a Local Coverage Determination (“LCD”) applicable to services performed on or after November 11, 2011, that eliminates coverage for urine drug screens (“UDS”) used by physicians to monitor whether patients are adhering to their medication regimens. The LCD limits coverage of UDS to circumstances where patients present with a suspected drug overdose, with known substance abuse or dependence, or for chronic pain patients suspected of illicit drug use ONLY if there has been an acute change in the patient’s physical or mental status, which the LCD equates with unexplained coma, unexplained altered mental status, severe cardiovascular instability, unexplained metabolic or respiratory acidosis, or unexplained seizures. The LCD expressly provides that drug screening for compliance purposes, diversion, or in asymptomatic patients is not covered.
Many of the leading experts in pain management, as well as the Federal Drug Enforcement Administration, support the use of random UDS to detect drug diversion and thwart drug-seeking behavior. In fact, as recently as last year Michele M. Leonhart, the Administrator of the Drug Enforcement Administration, wrote that pain management specialists who fail to use random urine drug screens to detect misuse of prescription pain medication breach the standard of care in prescribing controlled.
Two factors have led to the broad agreement that urine drug screens are essential for weeding our patients who are misusing prescription pain medication. First, urine drug screens are effective in identifying what is known as “aberrant drug behavior,” which includes misusing illicit drugs and diverting prescription pain medication for sale. One relatively recent study identified a 45% rate of unexpected test results in a pain management practice, including 20% of patients who tested positive for illicit substances in their urine. Second, there are few, if any, reliable ways of predicting aberrant drug behavior. Authors on this subject agree that there is simply no way to obtain information from and about a patient that will meaningfully predict whether that patient will engage in aberrant drug behavior. So periodic urine drug screens act as a deterrent against such behavior and as a tool for identifying it.
Supporters of the LCD will argue that there is less risk of aberrant drug behavior among Medicare beneficiaries than in other segments of the population. Perhaps. But when you talk to pain management practitioners, what you hear is that abuse and misuse is rampant everywhere, even among those covered by Medicare. Many of the leading clinical experts in the field of pain management recommend random urine drug screens for all patients.
Another concern is how other health insurance carriers will respond to this determination. Carriers closely watch Medicare coverage determinations. Will other carriers implement similar coverage determinations?
For now, the focus will be on how to deal with Medicare beneficiaries. As a result of the LCD, Delaware physicians, particularly pain management physicians, who prescribe narcotics for the treatment of chronic pain and follow random UDS procedures to monitor compliance with medication regimens are now faced with a quandary with respect to their Medicare patients—forego random UDS or require those patients to pay for UDS themselves. The first option is hardly viable in our current environment.
Delaware physicians will need to advise their Medicare patients that random UDS are not covered services and, accordingly, the patients will be expected to pay for them. Given that much of the Medicare-covered population is of limited means, it seems that the recent LCD will create an interesting tension between patients and their doctors. Now that Medicare is refusing to pay for these tests, who will?
Many of the leading experts in pain management, as well as the Federal Drug Enforcement Administration, support the use of random UDS to detect drug diversion and thwart drug-seeking behavior. In fact, as recently as last year Michele M. Leonhart, the Administrator of the Drug Enforcement Administration, wrote that pain management specialists who fail to use random urine drug screens to detect misuse of prescription pain medication breach the standard of care in prescribing controlled.
Two factors have led to the broad agreement that urine drug screens are essential for weeding our patients who are misusing prescription pain medication. First, urine drug screens are effective in identifying what is known as “aberrant drug behavior,” which includes misusing illicit drugs and diverting prescription pain medication for sale. One relatively recent study identified a 45% rate of unexpected test results in a pain management practice, including 20% of patients who tested positive for illicit substances in their urine. Second, there are few, if any, reliable ways of predicting aberrant drug behavior. Authors on this subject agree that there is simply no way to obtain information from and about a patient that will meaningfully predict whether that patient will engage in aberrant drug behavior. So periodic urine drug screens act as a deterrent against such behavior and as a tool for identifying it.
Supporters of the LCD will argue that there is less risk of aberrant drug behavior among Medicare beneficiaries than in other segments of the population. Perhaps. But when you talk to pain management practitioners, what you hear is that abuse and misuse is rampant everywhere, even among those covered by Medicare. Many of the leading clinical experts in the field of pain management recommend random urine drug screens for all patients.
Another concern is how other health insurance carriers will respond to this determination. Carriers closely watch Medicare coverage determinations. Will other carriers implement similar coverage determinations?
For now, the focus will be on how to deal with Medicare beneficiaries. As a result of the LCD, Delaware physicians, particularly pain management physicians, who prescribe narcotics for the treatment of chronic pain and follow random UDS procedures to monitor compliance with medication regimens are now faced with a quandary with respect to their Medicare patients—forego random UDS or require those patients to pay for UDS themselves. The first option is hardly viable in our current environment.
Delaware physicians will need to advise their Medicare patients that random UDS are not covered services and, accordingly, the patients will be expected to pay for them. Given that much of the Medicare-covered population is of limited means, it seems that the recent LCD will create an interesting tension between patients and their doctors. Now that Medicare is refusing to pay for these tests, who will?
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