Last week the OIG released its long-awaited report evaluating the extent to which doctors are opting out of Medicare and the reasons why they are opting out. Spoiler alert: The report was inconclusive. The OIG reported that CMS and its contractors “do not maintain sufficient data regarding physicians who opt out of Medicare. As a result, we are unable to conduct the proposed evaluation at this time.”
For those of us who are frequently asked by the OIG to review and analyze historical Medicare claims, the temptation to ask why that excuse does not work for us is hard to suppress. However, the OIG’s desire for accuracy and its unwillingness to provide a report based on conjecture is admirable. It is important to understand the factors that will impact access to care for our aging population. A less than thorough analysis would have been a mistake.
The OIG notes in its report that the number of opted-out physicians appears to have increased in each year from 2006 to 2010. The report goes on to predict that more physicians may opt out in the near future due to potential legislated decreases in Medicare reimbursements. A Medical Society of Delaware survey for 2012 validated the OIG’s intuition. More than 50% of the physicians polled said that they were considering changing their Medicare participation status due to the proposed 27.4% proposed reduction to the fee schedule.
This is an issue worth monitoring. A recent Texas study reported that 37% of its primary care practices limit the number of new Medicare patients in the practice and another 13% do not accept any Medicare patients. If the OIG is correct and the national trend is that more physicians are opting out of Medicare each year, we may be closer to a crisis of access of care for seniors than anyone realizes.
The OIG has pledged to conduct a full evaluation when CMS and its contractors are in a position to provide more accurate information.
Tuesday, January 31, 2012
Friday, January 13, 2012
Bill Authorizing Medical Practice Inspections Up for Consideration by Delaware’s General Assembly
The 146th General Assembly reconvened this week and one of the bills it may consider is SB51, which authorizes the Division of Professional Regulation to investigate complaints of unsafe or unsanitary conditions at any location where “medical or health-related treatment” is rendered, excluding hospitals, freestanding birthing centers, freestanding surgical centers or freestanding emergency centers. The bill also provides that a Delaware-licensed physician may be disciplined for maintaining an unsanitary or unsafe condition in his/her office. Complaints must be in writing, may not be anonymous, must be filed within 5 days of observing the complained-of condition, and can only be filed by a person over the age of 18 who has observed the condition and reported it to the staff at the location where the condition was observed. So while the proposed legislation does not give the Division free reign to conduct inspections of physicians’ offices, it authorizes discipline against Delaware physicians who operate their practices in an “unsafe” or “unsanitary” manner, leaving open to interpretation just what constitutes an “unsafe” or “unsanitary” condition.
Thursday, December 29, 2011
Health Care Fraud: Newest Numbers and Enforcement Actions
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.
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.
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?
Friday, November 18, 2011
Governor Markell urges Delaware lawmakers to do more to address prescription drug abuse
The focus on prescribing narcotics and other controlled substances for the management of pain is nothing new, but Delaware has recently taken initiatives to bring that focus into perspective. In a post on October 14, I wrote about the recently proposed rule on the use of controlled substances in the treatment of pain. That rule establishes the Board of Medical Licensure and Discipline’s (“Board”) formal recognition of use of controlled substances in the treatment of pain. After a recent series of articles in the News Journal about the abuse of prescription pain killers in Delaware, pain management physicians should be alerted to all of the changes coming to state and participate in the processes to fight this epidemic.
In a November 10th article, the News Journal reported that. Governor Markell indicated that he would either propose specific legislation or ask the Board to pass a regulation. Once Delaware establishes its electronic prescription systems next year, Governor Markell pledges to work with the governors of the surrounding states to share data in Delaware’s new prescription monitoring program. Delaware is currently one of fifteen states without such a system already in place. The Governor also indicated that a public awareness campaign may strengthen the requirements of this new program.
Investigations into the practice of prescribing controlled substances are on the rise, and since January of 2010, the Board has suspended or reprimanded nine doctors for violations. In what has become a prescription drug abuse epidemic, such prescription habits will also draw attention from state and federal authorities fighting against health care fraud.
Developing new prescription monitoring systems will provide doctors who prescribe controlled substances with a valuable tool for identifying drug-seeking patients, which in the end should serve to reduce some of the abuse that has plagued Delaware and other states.
In a November 10th article, the News Journal reported that. Governor Markell indicated that he would either propose specific legislation or ask the Board to pass a regulation. Once Delaware establishes its electronic prescription systems next year, Governor Markell pledges to work with the governors of the surrounding states to share data in Delaware’s new prescription monitoring program. Delaware is currently one of fifteen states without such a system already in place. The Governor also indicated that a public awareness campaign may strengthen the requirements of this new program.
Investigations into the practice of prescribing controlled substances are on the rise, and since January of 2010, the Board has suspended or reprimanded nine doctors for violations. In what has become a prescription drug abuse epidemic, such prescription habits will also draw attention from state and federal authorities fighting against health care fraud.
Developing new prescription monitoring systems will provide doctors who prescribe controlled substances with a valuable tool for identifying drug-seeking patients, which in the end should serve to reduce some of the abuse that has plagued Delaware and other states.
Friday, November 4, 2011
DMMA Issues Regulations Regarding Non-Payment for Provider Preventable Conditions
As required by the federal health care reform law passed in March 2010, Delaware’s Division of Medicaid and Medical Assistance issued final regulations on November 1, 2011, that provide, as of July 1, 2011, that DMMA will not reimburse hospitals for provider preventable conditions (PPCs), which include foreign objects retained after surgery, blood transfusions with incompatible blood, falls and trauma occurring in the hospital, and the like. A full list of PPCs can be found at http://www.dmap.state.de.us/downloads/bulletins/federal.prohibition.payment.provider.pdf. The payment bar does not apply to services related to pre-existing conditions, i.e., those “present on admission” (“POA”).
The final regulations also require Delaware hospitals that are Medicaid providers to report the occurrence of a PPC “through the appropriate claim(s) type submission process.” The regulation does not elaborate on the mechanics of reporting but DMMA has promised that more information on the reporting requirement will follow.
The final regulations also require Delaware hospitals that are Medicaid providers to report the occurrence of a PPC “through the appropriate claim(s) type submission process.” The regulation does not elaborate on the mechanics of reporting but DMMA has promised that more information on the reporting requirement will follow.
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