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What To Do When Your Doctor Fails To Doctor?
Not everyone loves their job. Not everyone has a job. Not everyone does their job. And that includes doctors and lawyers. Not all doctors and lawyers do their jobs well. When a doctor fails to doctor, where does the liability lie? On the facility? On the hospital?
That is exactly what happened in one of my cases. My client, an inpatient substance abuse facility, hired a physician. Upon hire, the doctor signed an employment agreement that stated that he or she would perform the role as a doctor/medical director for the facility. Years passed. There were no complaints, so the executive committee was under the impression that the doctor was fulfilling his duties. The members certainly had no reason to suspect that the doctor was not doctoring according to the employment contract. No, they assumed that a doctor would doctor.
Then a RAC audit happened. As you are well aware, RAC audits go back three years. The facility received a Tentative Notice of Overpayment from the RAC alleging the facility owed almost $10 million. I was hired, and I conducted a review of the facility, its policies, and interviewed all staff. It came to light that the doctor did not review the results of urinalysis tests. Remember, this is a substance abuse facility. Urine tests are essential. The Medicaid recipients provided the samples; they peed in a cup. The labs were ordered. The doctor has a standing order for definitive and presumptive urinalysis tests. The doctor has sole access to the test results electronically. We discovered, much to our horror, that the doctor never looked at the results. For the past three years, she has never informed any patient that they were or were not positive or negative for any substance. In my mind, reviewing the urinalysis results goes hand in hand with substance abuse therapy.
Here, we discovered a breakdown in the facility, but that breakdown was one person not doing his or her job. Sadly for him or her, we – the facility – were able to use the doctor’s failure to doctor to our advantage. We appealed the $10 million alleged overpayment. Our primary defense was throwing the doctor under the bus, and we had every right to do so. Who would have expected your medical director failing to direct or review pertinent tests. In the world of law, respondeat superior, normally, is the general rule. In Latin, respondeat superior means that the superior or the boss or the owner is responsible for those underneath them. In this case, the facility is the superior and the doctor is the inferior, so you would expect the facility to bear any liability of its employees. But, not here. Not in this case. The doctor failed to meet expectations of the job. By not reviewing urinalysis test results, the doctor veered enough off the track to relieve liability from the facility. The doctor’s inactions were the direct cause of the accusation of owing $10 million. The administrative law judge (“ALJ”) agreed. After terminating the doctor, we contemplated suing the physician for damages. However, since we won the alleged overpayment case, we did not do so.
Medicare/Caid Audits: Urine Testing Under Fire!!
I have blogged about peeing in a cup before…but we will not be talking about dentists in this blog. Instead we will be discussing pain management physicians and peeing in a cup.
Pain management physicians are under intense scrutiny on the federal and state level due to increased urine testing. But is it the pain management doctors’ fault?
When I was little, my dad and I would play catch with bouncy balls. He would always play a dirty little trick, and I fell for it every time. He would toss one ball high in the air. While I was concentrating on catching that ball, he would hurl another ball straight at me, which, every time, smacked into me – leaving me disoriented as to what was happening. He would laugh and laugh. I was his Charlie Brown, and he was my Lucy. (Yes, I have done this to my child).
The point is that it is difficult to concentrate on more than one thing. When the Affordable Care Act (ACA) came out, it was as if the federal government wielded 500, metaphoric, bouncy balls at every health care provider. You couldn’t comprehend it in its entirety. There were different deadlines for multiple changes, provider requirements, employer requirements, consumer requirements…it was a bloodbath! [If you haven’t seen the brothers who trick their sister into thinking it’s a zombie apocalypse, you have to watch it!!]
A similar “metaphoric ball frenzy” is occurring now with urine testing, and pain management physicians make up the bulk of prescribed urine testing. The urine testing industry has boomed in the past 4-5 years. This could be caused by a number of factors:
- increase use of drugs (especially heroine and opioids),
- the tightening of regulations requiring physicians to monitor whether patients are abusing drugs,
- increase of pain management doctors purchasing mass-spectrometry machines and becoming their own lab,
- simply more people are complaining of pain, and
- the pharmaceutical industry’s direct-to-consumer advertising (DTCA).
Medicare’s spending on 22 high-tech tests for drugs of abuse hit $445 million in 2012, up 1,423% in five years. “In 2012, 259 million prescriptions were written for opioids, which is more than enough to give every American adult their own bottle of pills.” See article.
According to the American Association of Pain Management, pain affects more Americans than diabetes, heart disease and cancer combined. The chart below depicts the number of chronic pain sufferers compared to other major health conditions.
In the world of Medicare and Medicaid, where there is profit being made, the government comes a-knockin’.
But should we blame the pain management doctors if recent years brought more patients due to increase of drug use? The flip side is that we do not want doctors ordering urine tests unnecessarily. But aren’t the doctors supposed to the experts on medical necessity??? How can an auditor, who is not a physician and never seen the patient opine to medical necessity of a urine test?
The metaphoric ball frenzy:
There are so many investigations into urine testing going on right now.
Ball #1: The machine manufacturers. A couple of years ago, Carolina Liquid Chemistries (CLC) was raided by the federal government. See article. One of the allegations was that CLC was misrepresenting their product, a urinalysis machine, which caused doctors to overbill Medicare and Medicaid. According to a source, the federal government is still investigating CLC and all the physicians who purchased the urinalysis machine from CLC.
Ball #2: The federal government. Concurrently, the federal government is investigating urine testing billed to Medicare. In 2015, Millennium Health paid $256 million to resolve alleged violations of the False Claims Act for billing Medicare and Medicaid for medically unnecessary urine drug and genetic testing. I wonder if Millennium bought a urinalysis machine from CLC…
Ball #3: The state governments. Many state governments are investigating urine testing billed to Medicaid. Here are a few examples:
New Jersey: July 12, 2016, a couple and their diagnostic imaging companies were ordered to pay more than $7.75 million for knowingly submitting false claims to Medicare for thousands of falsified diagnostic test reports and the underlying tests.
Oklahoma: July 10, 2016, the Oklahoma attorney general’s office announced that it is investigating a group of laboratories involved in the state’s booming urine testing industry.
Tennessee: April 2016, two lab professionals from Bristol, Tenn., were convicted of health care fraud in a scheme involving urine tests for substance abuse treatments.
If you are a pain management physician, here are a few recommendations to, not necessarily avoid an audit (because that may be impossible), but recommendations on how to “win” an audit:
- Document, document, document. Explain why the urine test is medically necessary in your documents. An auditor is less likely to question something you wrote at the time of the testing, instead of well after the fact.
- Double check the CPT codes. These change often.
- Check your urinalysis machine. Who manufactured it? Is it performing accurately?
- Self-audit
- Have an experienced, knowledgeable, health care attorney. Do not wait for the results of the audit to contact an attorney.
And, perhaps, the most important – Do NOT just accept the results of an audit. Especially with allegations involving medical necessity…there are so many legal defenses built into regulations!! You turn around and throw a bouncy ball really high – and then…wallop them!!
