Pain Management Regulations Affect More Than Pain Management Specialists

female professional

The recently passed House Bill 7095 affects more than just pain management specialists.  Practitioners who prescribe controlled substances for individuals with “chronic nonmalignant pain” also are required to comply with new state regulations, including designation “as a controlled substance prescribing practitioner on the physician’s practitioner profile”“with the state Board of Medicine by January 1, 2012. What follows is a bulleted summary of the new regulations.

Prescription s for controlled substances must be either written or electronic.  Telephone prescriptions no longer are allowed.

Written Prescriptions for Controlled Substances

  • Must have quantity in textual and numerical format
  • Must be dated with the abbreviated month written out
  • Must be written on a standardized counterfeit-proof prescription pad produced by a DOH approved vendor

Physicians who prescribe any controlled substance for the treatment of “chronic nonmalignant pain” must designate him or herself as a controlled substance prescribing physician on the physician’s practitioner profile and must comply with statutory requirements and applicable board rulesContinue reading

The Government Is No Friend to Investigated Physicians

Healthcare reform aside, physicians are increasingly buried under the weight of nonstop regulatory scrutiny and compliance requirements.  Even the most compliant physician will find, however, that the government is no gentleman when it comes to efforts to ferret out wrongdoing.

Physicians are most commonly confronted with the regulatory process by a phone call from an investigator or perhaps a written request for information.  Board of Medicine issues usually begin with the so called “45 day letter,” which invites a physician suspected of wrongdoing to submit a written response to an allegation of wrongdoing.  EMTALA violations are reported to the Department of Health and the Office of Inspector General, both of which will initiate contact with the physician in writing.

Though physicians may think a simple explanation will convince an investigator or attorney to back off, that is seldom the case.  Physicians wrongly think that the point of such investigations is to determine the truth.  They must instead accept that, once investigators and prosecuting lawyers have contacted them, there is already a belief that wrong doing has occurred.  Physicians would do well to understand that the job of the investigator and prosecutor involves just two things:  (1)  Seeing if the physician’s response is so convincing as to cause them to reevaluate their suspicion (it seldom is); and (2) to see if they think they have enough to justify a prosecution.  The investigator and prosecutor have a job, to find wrongdoing and to punish it!  They are not philosophers or social workers.  They are not counselors to have a really nice conversation with.  They are not to be trusted because their job is at odds with physicians who are the targets (or even witnesses) of their investigations.  If physicians can remember one thing, it is that they need the support of lawyers and others who know their way over this unfriendly terrain.

Innocent physicians caught in the investigative/prosecutorial process may feel impatient and frustrated.  “I’ve done nothing wrong, so surely if I just tell the truth everything will be ok.”  It’s just not that way; and it’s just not that simple!  Discussions with the government will take time and will require patience.  What physicians have to keep in mind is that, though they are innocent until proven guilty, if they are targets of an investigation, the investigator and prosecutor already suspect them of wrongdoing.  It’s a bit of an uphill climb!

Remarkably, even the best legal representation will not necessarily resolve matters quickly.  By the time physicians are aware they are being investigated, in many instances months have been spent working that case, and prosecutors are simply not inclined to immediately walk away from all that hard work.

Surprising still is that prosecutors will try to get a settlement, even when your lawyer tells you there is no wrongdoing.   Recall that the prosecutor has a job—find the bad guy and win the case.  If the prosecutor can get you to settle, particularly by paying money, they will call it a “win” and move on to the next case.  It is nauseating but true that sometimes it makes sense to settle, even when there is no wrongdoing, given the legal and related expenses.  But when settling is not an option because it causes a cascade of unacceptable consequences (e.g. a Board of Medicine investigation, a medical malpractice suit, becoming sanctioned by Medicare and perhaps even losing medical staff membership and managed care contracts), physicians have no option but to fight.

Probably most surprising, physicians who vigorously defend themselves may find that they never “win.”  That is, they are never told by a prosecuting lawyer that the government is giving up.  Physicians who have been the targets of government investigations will find that the sound of victory is often silence.  Government prosecutors simply get quiet!  You just stop hearing from them.

The best physician defendant is one well armed with guidance to traverse an inherently adversarial environment.


Medical Staffs and Conflicts of Interest

PHI Breach

Medical staffs are increasingly frustrated with the financial relationships their medical executive committee (MEC) members have with the hospitals where they work.  These financial relationships can be the cause of troubling conflicts of interest (COI).  Medical staffs need to be proactive about the issue.

A hospital based physician’s livelihood (and the economic welfare of his/her family) depends in part on having a good relationship with the administration of the hospital where he or she works.  It is easy, therefore, to see how the physician would be hard pressed to go against the hospital on controversial matters.  The same goes for a full time employed physician of a hospital and even a medical director who may derive significant compensation from his or her relationship with the hospital.

Looked at another way, what about a physician who staffs a hospital based department at hospital #1 who wants to get on staff of competing hospital #2?  What about the physician who is employed by hospital #1 becoming a member of hospital #2 and who wants to become president of hospital 2’s medical staff?

Intertwined financial relationships between hospitals and physician are on the rise.  The complexity of an ever evolving business model brings hospitals and physicians closer and closer, which creates significant COIs.  MECs must take a good look at what circumstances constitute a COI and develop methods to counteract them.

A COI basically exists for an MEC member when the member has a relationship with a party which causes the member to place his or her personal interests before those interests of the medical staff as a whole.  A classic COI is a financial relationship with the hospital.  If an MEC member receives money from a hospital for providing a service to or on behalf of a hospital, a COI exists.  But the inquiry does not stop there.  Simply having a COI is not dispositive.  The question is what to do about it.

There is essentially a two step process involved for an MEC member with a COI.  First, the COI must be disclosed.  This ought to be done annually and at each MEC meeting.  Second, on any matter where the COI is implicated, the MEC member ought to recuse himself or herself from a vote on the matter.  They can participate in the MEC consideration, but should leave the room when the vote is taken.

There is a third option, a poison pill of sorts.  If an MEC member find that the COI has him or her bouncing in and out of the MEC meeting room regularly, there ought to be consideration given to the person’s resignation.

At the very least, medical staffs must develop policies and procedures regarding COIs.  COIs ought to be defined and handled on a predetermined basis.  Moreover, medical staffs should give serious consideration to ensuring that at least a majority of the MEC members do not have a COI that would prevent them from doing their job, which is to ensure the integrity and proper functioning of the medical staff.


Are Recovery Audit Contractors Going to Put You on the RAC?

Medicare audits

Recovery Audit Contractors are here to stay and they are affecting the way medicine is practiced across the nation.  If they have not already, they will influence your office and facility practice, and likely hit you in the pocket book.

Recovery Audit Contractors, or ‘RACs’, were designed through a federal demonstration project from 2005 until 2008.  The purpose of RACS is twofold:

  • Ensure Medicare providers deliver more nationally consistent, evidence based health care
  • Reduce noncompliance with Medicare coverage, coding and billing rules.

The goal is to reduce Medicare spending, plain and simple.

RACs are structured by region and our southeast region RAC is Connolly Consulting Associates, Inc of Wilton CN.  RACs work on a 9 to 12% contingent fee basis, but must return any fees if a RAC finding is overturned.  Each RAC must post on its website the types of issues under review.  This is a good place to start if you would like to know what Connolly is auditing.  Each RAC must employ a full time medical director, nurses, therapists and certified coders.

RACS perform two types of reviews, automated and Complex.  Automated reviews review claims data derived from the CMS database without a review of the records supporting the claim.  Complex reviews are performed when there is a high likelihood of overpayment.

For the most part, RACs have focused on inpatient hospitals, but that is changing.  Five categories of improper payments are generally being identified:

  • Not Medically Necessary- The record does not support the need for the procedure or stay.  Short stays are often deemed not medically necessary, as is duplicate billing for the same procedure.  This category often is found when a provider either fails to submit documentation or fails to submit sufficient documentation to support a claim.
  • Incorrectly Coded-A claim is submitted for a certain procedure, but the medical record indicates Performance of a different procedure
  • Incorrect Payment Amounts
  • Non covered, or duplicative services
  • Other errors- For example, a provider uses an outdated fee schedule or is paid twice for the same claim.

Likely, physicians are affected because inpatient facilities are working hard to assure records substantiate the billed for admission or procedures.  You may be called upon by your inpatient facility to improve and/or supplement your medical record keeping to avoid RAC recoveries.  In addition, remember, the RAC only looks at the inpatient medical record.  If justification for the hospitalization or procedure is in your office records, but not in the inpatient record, it does not count.

There is a lot more to say about RACs, but we will conclude this article with a look into the future.  HHS Office of the Inspector General has recommended CMS focus RAC activity on nursing homes; highly utilized outpatient therapies; and maximized use of generics.  With the amount of fraud in home care services and DME’s, you can bet they will go there, too.  Medicare Part D RACS are just rolling out, and Medicare Quality Reviews are on the horizon.  In addition, Medicaid RACs are coming next.

RACs are here to stay, so stay tuned for more on RACs.


The Money Is In The Management

business team

Conversation regarding ACOs and even healthcare reform itself is misplaced.  The well established facts are (1) more people will receive health care, and (2) the cost of healthcare will come down.  It does not matter whether the stimulus is a new law or just marketplace reaction.  The fact is that a healthcare system whose players are incentivized to do more with more expensive stuff is not economically sustainable or socially tolerable.

Take a look at our evolving marketplace.  What’s the single most distinctive feature in healthcare, aside from inactivity?  Integration.  Larger hospital systems and larger medical practices, typically single specialty.  Good adaptation?  Maybe.  It is in the short run.  Single specialty aggregation is purely defensive though.  It allows groups to maintain market share and to resist price compression better.  But how will that allow providers to do more with less?  How will that stimulate more outcome based, financial risk based care?  It doesn’t.  It is well established that cost and quality management demands broad spectrum system awareness….ummmm primary care physicians.  The adaptation of single specialty group integration is short term.  How short?  Who knows?  But it is clearly not as sustainable as one whose preparation for change includes primary care capabilities.

And how do hospital-based physician alliances help physicians survive and thrive?  They don’t unless they have a strong primary care base, and even then it is very questionable whether hospitals will be able to utilize their PCPs and specialists in a way that rewards outcomes based, financially smart behavior.  Hospitals have always been sink holes in the landscape of healthcare costs, so why jump in?  Physicians need to make sure that their affiliated hospital systems have clear plans and abilities (e.g. management and good physician billing and collection experience) to deliver outcomes at the right price.  Studies, however, that indicate over sixty percent of Florida hospital admissions are unnecessary are consoling in a fee for service environment, but devastating in a capitated (or other risk based) one.  Physicians have to make sure the ship they book passage on can sail a long way.

And they have to make sure they are part of the right team.  What expertise is there in things like IT, financial management, clinical outcomes management, and risk based contracting?  You’re gonna need that!

If one believes that healthcare costs are unsustainable (this guy does) and that our entire payment system is driving that result, then the need for new payment systems is clear.  And the challenge, just in terms of thinking about healthcare differently, is enormous!  How do you go to work and not think “I gotta do a lot, test a lot, do lots of procedures.”  How do you begin to shift?  Do you shift?

The compelling answer is “YES.”  Why not act now, before any law (even one dumber than the one that passed a year ago) gets passed, before our society calls the issue a failure and politicians and our neighbors demand a single payer-type system?  Isn’t there a huge opportunity RIGHT NOW?  You betcha.

So where is it?  It’s in management.  The money is in the management.  The data collectors, crunchers and implementers are the new gods in healthcare.  Anyone who can collect data, show what makes clinical and financial sense and then implement it will be more sought after than conflict diamonds.  Show one hospital how to live in that new system, where there are more patients, but less money available, and you retire rich.  Show physicians and other healthcare business people the same thing and lead change.  And since physicians are busy being physicians, except for a handful of physician entrepreneurs, they’re best bet is gonna be to find good partners in “business” who embrace change and see opportunity.


Florida Lifts Prescription Drug State of Emergency

via Florida Tribune 8-29-11

Just days before a new drug database is set to start operation, the state of Florida announced that it was lifting the statewide public health emergency it declared due to Florida’s prescription drug crisis.

State officials first declared the emergency back in early July and then swept through clinics across the state for inspections that yielded in the seizure of hundreds of thousands of prescription drugs.

“While the statewide public health declaration may no longer be in effect, the efforts of the Florida Department of Health, law enforcement partners and other state agencies remain strong,” said Gov. Rick Scott in a statement.

Scott had set up a task force to go after pain clinics back in March. Scott initially was opposed to keeping intact the proposed drug database – which is meant to track prescriptions issued by doctors for drugs such as OxyContin, Valium and Xanax.

But Scott, lawmakers and Attorney General Pam Bondi reached a compromise that kept the database which is scheduled to become operational this Thursday. A bill passed this past session also requires physicians to submit their prescription information within seven days.

Dr. Frank Farmer, the Department of Health secretary, also announced along with lifting the state of emergency he was also lifting a moratorium on a part of HB 7095 that had been put on hold.

Two months ago Farmer put on hold a requirement that as many as 50,000 Florida-licensed physicians use counterfeit-resistant prescription pads. The move was taken in the wake of phone calls from patients and doctors saying that pharmacies around the state had begun to refuse to fill prescriptions for controlled substances because the prescriptions were not written on the approved pads.

“Allowing the practitioners who are approved to prescribe controlled substances more time to order the prescription pads was necessary to ensure public safety over the long term,” Farmer said. “Now is the time to start using them.”

Avoiding the 2012 eRx Payment Adjustment

CMS Medicare

Via www.pbcms.org

An eligible professional can avoid the 2012 eRx Payment Adjustment if he or she: Is not a physician (MD, DO, or podiatrist), Nurse Practitioner, or Physician Assistant as of June 30, 2011, based on primary taxonomy code in the National Plan and Provider Enumeration System (NPPES); Does not have prescribing privileges and reports G-code G8644 (defined as not having prescribing privileges) at least one time on an eligible claim prior to June 30, 2011; Does not have at least 100 cases containing an encounter code in the measure’s denominator; Becomes a successful electronic prescriber (submits required number of electronic prescriptions (10 for individual) via claims and reports this to CMS before June 30, 2011); or Claims a hardship as described below. A group practice that is participating in eRx GPRO I or GPRO II during 2011: MUST become a successful electronic prescriber (submit required number of electronic prescriptions via claims before June 30, 2011); (Depending on the group’s size, the group practice must report the eRx measure for 75-2,500 unique eRx events via claims for patients in the denominator of the measure). If an eligible professional or selected group practice wishes to request an exemption to the eRx Incentive Program and the payment adjustment, there are two “hardship codes” that can be reported via claims if one of the following situations apply: G8642 – The eligible professional practices in a rural area without sufficient high speed internet access and requests a hardship exemption from the application of the payment adjustment under section 1848(a)(5)(A) of the Social Security Act. G8643 – The eligible professional practices in an area without sufficient available pharmacies for electronic prescribing and requests a hardship exemption from the application of the payment adjustment under section 1848(a)(5)(A) of the Social Security Act.

For additional information, please visit the “How to Get Started” and “Payment Adjustment Information” sections at http://www.cms.gov/erxincentive on the CMS website.

Medicaid Fingerprinting Requirements

Medicaid Fingerprinting Requirements

via PBCMS medlink available at www.pbcms.org    

There has been some recent confusion about the new Medicaid requirement for providers to have their fingerprints done. AHCA recently distributed a memo on the requirement which states:

409.907 (8)(a), F.S., requires all initial or renewing provider applicants to Florida Medicaid to submit fingerprints for purposes of obtaining a criminal history record check unless they meet one of the exemptions as described in the statute.

All physicians do NOT need to go out and get their fingerprints done immediately. The ONLY physicians this applies to are those who are initially applying as a Medicaid provider or renewing their provider application. At that time, a provider will be required to submit his or her fingerprints with the application.