Medication Diversion as Abuse in Facilities

On February 14, Governor Markell signed into law House Bill No. 154, amending Titles 16 and 24 of the Delaware Code, as another action to help curb prescription drug abuse and diversion in Delaware.  The law creates a new criminal offense and imposes penalties for diverting prescription drugs from a patient in a facility.  More specifically, the law includes in the definition of “abuse” medication diversion “by knowingly, or intentionally, interrupting, obstructing, or altering the delivery or administration, of a prescription drug to a patient or resident” so long as the drug was prescribed or ordered by a healthcare provider for the patient or resident and where the diversion occurred without a prescription or order of a healthcare provider. 

            The law allows for a safe harbor of sorts, providing that a person is justified in diverting the prescription drug if the person is a healthcare provider who acted in good faith within the scope of his/her practice and/or employment, or if the person was acting in good faith while rendering emergency care at the scene of an emergency of accident.  This safe harbor may raise issues about the scope of practice of particular health care providers and the existence of written and/or verbal orders to stop the administration of a drug.

             If a person knowingly causes medication diversion of a patient or resident, the person shall be guilty of a class G felony.  If the person is a healthcare professional, he/she shall be guilty of a class F felony.  Delaware healthcare providers who work in facilities should clarify their scope of practice and employment related to the interruption of prescription medications, even if only temporarily.

The 2014 OIG Work Plan as a Guide to Fraud and Abuse Focus Areas

            After a delay of several months, the Department of Health and Human Services, Office of Inspector General (“OIG”) released its Fiscal Year 2014 Work plan on January 31, 2014.  After combing through Work Plan, we noticed new areas of OIG focus, which it believes may be ripe for fraud, waste, and abuse.  The Delaware healthcare community—from physician practices to institutional providers—can stand to gain a great deal of insight by understanding the OIG’s focus and trends for the new year.  Most importantly, the Work Plan can help providers identify potential areas of compliance risk before an issue arises.  We have identified a few key OIG initiatives below.

For Hospitals

• Outpatient evaluation and management (E/M) services billed at the new-patient rate.  The OIG will review Medicare outpatient payments made to hospitals for E/M services for clinic visits billed at the new-patient rate
• Nationwide review of cardiac catheterization and heart biopsies.  The OIG will review Medicare payments for right heart catheterizations and heart biopsies billed during the same operative session and determine whether hospitals complied with Medicare billing requirements.
• Selected inpatient and outpatient billing requirements.  The OIG will continue to review Medicare payments to acute care hospitals to determine compliance with select billing requirements and recommend recovery of overpayments.
• Outpatient dental claims.  The OIG will continue to review Medicare payments for dental services to determine whether payments were made in accordance with Medicare requirements.  Current OIG audits have revealed significant overpayments in this area.

For Physicians

• Inappropriate payments for evaluation and management (E/M) services.  The OIG will continue to determine the extent to which providers were overpaid for select E/M services.  Medicare contractors have noted an increased frequency in identical documentation across services and beneficiaries.  The OIG will determine the extent to which EMR and paper health records have documentation vulnerabilities.
• Diagnostic radiology—medical necessity of high-cost tests.  The OIG will continue to review Medicare payments to determine whether they were medically necessary.
• Noncompliance with assignment rules and excessive billing of beneficiaries.  The OIG will review whether participating physicians accepted claim assignment and whether they complied with all Medicare requriements.

For Chiropractors

• Questionable billing and maintenance therapy.  The OIG will determine the extent of questionable billing for chiropractic services, as previous OIG work has demonstrated a history of inappropriate payments for chiropractic services.

For Nursing Homes

• Medicare Part A billing by skilled nursing facilities.  Prior OIG work that SNFs increasingly billed for the highest level of therapy even if beneficiary characteristics remained largely unchanged.
• Questionable billing patterns for Part B services during nursing home stays.

The entire OIG Work Plan can be viewed at http://oig.hhs.gov/reports-and-publications/workplan/index.asp. All providers should consider potential areas of compliance risk that affect their organization and act upon those risks when necessary.