Two California Counties (Orange and Santa Clara) Sue 5 Large Opioid Manufacturers For Deception and False Advertising

Two Cali­for­nia counties (Orange County and Santa Clara County) sued five of the world’s largest nar­cot­ics man­u­fac­tur­ers on Wed­nes­day, ac­cus­ing the com­pan­ies of caus­ing the na­tion’s pre­scrip­tion drug epi­dem­ic by wa­ging a “cam­paign of de­cep­tion” aimed at boost­ing sales of po­tent paink­illers such as Oxy­Con­tin. The Los Angeles Times has a link to this lawsuit which is important in the war against prescription painkiller addiction. The physicians and pharmacists have been blamed for this epidemic without looking at the big pharma manufacturers and advertisers.

The U.S. is awash in opioids. In 2010, 254 million opioid prescriptions were filled in the U.S. - enough to medicate every adult in America around the clock for a month. Opioids - once a niche drug - are now the most prescribed class of drug - more than blood pressure or cholesterol. The lawsuit is an education in how big pharma advertise and spend millions to push off label uses of drugs and minimize the serious risks and outcomes of chronic opioid use.

Prescription drug abuse is a serious public health issue which has caused an epidemic heroin addiction problem in Orange County and across the country since prescription drug users will then turn to heroin once they can no longer obtain their prescription opioids. The largest killer of young males under 30 is prescription drugs and it's from the interactions with alcohol and other drugs that cause respiratory failure.

This will be an interesting lawsuit to watch and all health care providers should read it to understand the big picture of pain management with opioids.

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
Phone: 213-233-2260
Email: tgreen@greenassoc.com

Medical Tourism - Surrogacy Agency Is Under Federal Investigation - What Can We Learn From It?

One of the interesting trends with the rise of health care costs is medical tourism. An investigation by Al Jazeera America focuses on medical tourism in the surrogacy area where people have claimed that they were defrauded by a prominent surrogacy company which operates in the U.S. and Mexico. 

While I do not know the merits of the allegations, the article and the concept show the globalization of health care, how it will affect pricing and the incredible shift in how health care procedures are approached.

When I reviewed the website for Planet Hospital, it was in one way unnerving in seeing quotes for "tubal ligation reversal from $2,750," "gastric bypass from $7,000," or "kidney transplant - call for pricing." Why is that? Insurance payments and the roles of insurers have made it where we walk into hospitals or doctor's offices and there are no prices, no price lists and we have no idea what the charges will be for most medical procedures until we receive the bill.  It is different for cosmetic or elective procedures but I am talking about medically necessary procedures. However, why can't hospital and medical providers reveal their prices to patients and the differences between cash prices or insurance charges?

I predict that there will be a significant increase in physicians practicing internationally and traveling to perform surgeries in other countries. There are more physicians serving as locum tenems abroad. However, if a physician is licensed in California or other states, they would still be subject to their state medical board and complaints about their practice abroad regardless of where the complaint originated.  As this investigation piece shows that if American patients decide to complain about the medical tourism company, it will affect them and subject them to the jurisdiction of U.S. investigating agencies.

Globalization of medical services is an interesting trend and will have a great deal of legal consequences both for the companies who offer these services and the medical providers who work for them.

Posted by Tracy Green, Esq.
Green and Associates
Phone: 213-233-2260
Email: tgreen@greenassoc.com 

Physicians With Substance Abuse, Depression, Burnout Issues - LA Times' Article Criticizes Proposed Assembly Bill 2346

In California, the State Bar has a program for attorneys that allows them to go in and get treatment at an early stage. In California, there is no such program for physicians. The only program for physicians is to wait until they have a problem that becomes so grave that it is noted by the California Medical Board and results in an Accusation. There is no incentive for early treatment or encouraging physicians to join a confidential treatment program. There was a Diversion Program but it was shut down some years ago.

Assembly Bill 2346 the "Physician and surgeon assistance program" provides as follows:

"Existing law, the Attorney Diversion and Assistance Act requires the establishment and administration of an Attorney Diversion and Assistance Program to provide services for the treatment and recovery of attorneys for the abuse of drugs or alcohol or mental illness, and who may be enrolled as inactive members of the State Bar."

"This bill would authorize establishment of a similar assistance program for physicians and surgeons. The bill would authorize the Medical Board of California to make available the means to rehabilitate a physician and surgeon with impairment due to abuse of dangerous drugs or alcohol, or mental or physical illness, that affects his or her competency so that a physician and surgeon may be treated in a manner that will not endanger the public health and safety. The bill would require the board, if the program is established, to contract with another entity for provision of the administrative services for the program. The bill would make participants in the program responsible for all expenses relating to treatment and recovery, and would authorize the board to charge a reasonable administrative fee to participants for the purpose of offsetting the costs of maintaining the program. The bill would require the board, if the program is established, to engage in outreach to make physicians and surgeons and others aware of the existence and availability of the program."

The Los Angeles Times' opinion writer Michael Hiltzik opposed this bill on the ground that it would compromise patient safety. I think his views are short sighted and show a lack of understanding about depression, mental health and addiction issues. The goal of this bill is not to cover up physician misdeeds but to encourage physicians to seek treatment. If a physician commits gross negligence, has a settlement over $20,000 to a patient or is the subject of a patient complaint - the Medical Board would still have jurisdiction to investigate and impose discipline. In fact, this bill would encourage someone to get treatment before there is misconduct.

I have represented many professionals with mental health issues such as depression, OCD, bipolar and other issues that do not mean there was a problem with patient care.  In fact, sometimes the depression is as a result of the physician being so obsessed with their practice that they have neglected their family and friends and have become isolated. In addition, alcohol and drugs can become an issue when the physician used drugs initially to work long non-stop hours or in an effort to sleep after long shifts or working at night.  That is often why physicians are at risk. However, if we expect physicians to be less than human and truly god like and not allow for confidential treatment before cases go to the Medical Board, and simply want a punitive approach after problems happen, then do not adopt AB 2346. 

I think AB 2346 is necessary and as physicians will see is no cakewalk or place to hide. In the State Bar program, I have seen attorneys who had some alcohol related arrests during college or law school be required to complete the program successfully as a condition of being admitted to the Bar. That committee is tough and has experts on addiction. They spot problems before they happen and can do it at the application process instead of waiting for clients to be harmed. I accompanied one client to an evaluation by that State Bar Committee and they knew every excuse and even though he was not an alcoholic, they required him to quit drinking because they saw that a couple of alcohol related arrests (without convictions) were signs of a potential future problem. I support AB 2346 and think it will help physicians and their patients in the long run.

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law

Phone: 213-233-2260

Email: tgreen@greenassoc.com

Orange County Clears The Way For Treatment Of The Mentally Ill

The Los Angeles Times is reporting that Orange County is implementing Laura's Law  in its criminal courts. The article is entitled "O.C. clears way for court-ordered treatment of mentally ill." This allows court-ordered, intensive outpatient treatment for people with severe mental illnesses who refuse medication because their illness impairs their ability to make rational decisions.

Although this law has been in California since 2002, Orange County was one of the last counties to implement it.  Why is this important? Because being mentally ill is being criminalized.  If there is a schizophrenic or bipolar client who does something that falls in the criminal court (shoplifting, assault, etc.), it is likely that they will violate probation IF they do not take their medication and get treatment. In the past, the courts treated all defendants the same with a disproportionate high percentage of defendants who are mentally ill and are not getting proper treatment.

Without this special program for outpatient treatment, many mentally ill fell through the cracks. If they were truly not competent at all, then they could go to mental health court where they would be hospitalized or medicated until they were competent. However, many of the mentally ill are treatable IF they are compliant and take their medication.

I have represented many individuals who have mental illness (schizophrenic, bipolar, and so on), drug, alcohol or other addictions (there is a drug court and courts are used to treatment being a part of probation), or developmental or neurological issues (autism, Aspergers, OCD, etc.) In those cases, we have to tailor the case around the individual and create our own plan since the courts do not have the resources or system in place to handle these cases.

Case Study of Defendant With Schizophrenia.  I had a client who was diagnosed with schizophrenia and was also developmentally disabled due to seizures as a young man. He set a fire in the hall of his parent's condominium unit, immediately put it out with minimal damage, and called the police and 911 about the fire so he could give them CDs with all his writings on what the crows on the telegraph pole had told him about Osama Bin Laden. He was charged with arson, bail was set at $650,000 and when I wanted him released with treatment for bail, the supervisor in the LA County District Attorney's Office position was that all arsonists are crazy.

My client was offered a felony with no jail time but I did NOT want him to have an arson conviction because then how would he ever obtain housing once his parents or sister passed away and couldn't take care of him? It took almost one year of bouncing back and forth between mental health court (where they first found him competent in an absolutely shabby evaluation) and regular criminal court.  The facilities for hospitalization were full with long waiting lists.  Ultimately, I was able to get the case dismissed but it was with private psychiatrist, setting up our own treatment plan, working with Regional Center and a team approach.  

This was just one of many clients I have had who had mental health issues that got them in the criminal courts and then once there made it difficult for them to either meet the terms and conditions of treatment or to complete probation successfully.  

"What Are Mental Health Courts? Mental health courts are a type of problem solving court that combine judicial supervision with community mental health treatment and other support services in order to reduce criminal activity and improve the quality of life of participants. California implemented its first mental health courts in 1999. Mental health courts do their best to make more effective use of limited criminal justice and mental health resources, to connect individuals to treatment and other social services in the community, to improve outcomes for offenders with mental illness in the criminal justice system, to respond to public safety concerns, and to address jail overcrowding and the disproportionate number of people with mental illness in the criminal justice system.

Attorney Parting Thoughts: Orange County is taking the first step but this needs to be a TOP priority in our criminal justice system. It is also costing taxpayers much more to jail those with mental health issues instead of treating them. In addition, private attorneys, deputy district attorneys, public defenders, and judges need to be better educated about the options available and work on changing this broken system.  Where there are no programs or funding, it should be determined if the person qualifies for SSI disability, Medicare or Medi-Cal (California's version of Medicaid). Everyone needs to be creative in getting the funding and treatment needed instead of letting our system jail and warehouse those with mental health issues or developmental disabilities.

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
Los Angeles, California
Phone: 213-233-2260
Email: tgreen@greenassoc.com

I Have Received A Request For Patient Or Client Files From My Licensing Board, The Government Or An Insurance Company. What Should I Do?

One of the frequent questions we have in our practice is: I have received a request for a patient or client file from my licensing board, the government or an insurance company. What should I do?

One thing to remember is that every case is different and varies upon the facts. No one strategy works for each case. However, an experienced objective attorney can help you take it seriously without panicking and help prevent the complaint from turning into disciplinary charges or mitigating the problem.

Sometimes professionals turn it over to their office manager or secretary and later find that not all of the chart or file was copied, that an issue that was apparent (such as missing operative reports or other records) was not addressed, and did not think about having an expert look at the chart. Often if notes are not legible or there is a lengthy history, we will advise clients to prepare a summary of the chart and the treatment at the time the file is submitted.

One thing to remember is that if you have received this request it means that there is a complaint and that an investigation is open.  This is the time to be the most proactive. The earlier you can prevent an investigation from going forward, the better. Once an Accusation or disciplinary charge is filed or a referral is made to the Special Investigations Unit, it is difficult to unwind it. We find that often administrative or criminal charges were filed or an insurance company issues a sanction because the professional did not adequately address the investigation at an early stage.

One important piece of advice: do not simply produce the file and nothing else. Here are some of the things, among many, that can be done at this early stage:

1.  Take the opportunity to ensure the requesting entity (board, insurance company or governmental agency) has full access to all relevant information.

2.  If there were problems with this particular client or patient, a letter or memorandum summarizing the history, facts and issues will help the investigator evaluate the case. Have an experienced attorney, expert or other objective party review any submissions since you will have to live with them for several years if the case is investigated further and/or is the subject of disciplinary or criminal proceedings. Remember that everything you do is evidence.

3.  If there is significant handwriting in the file, dictate the notes and have them transcribed so the handwriting is easy to read. Have your attorney or other objective party ensure that the records are easy to understand.

4.  If this case had a bad or poor outcome (even if that is part of the risk that was disclosed to the client or patient), it may be useful to have your attorney hire an expert and evaluate the file in order to help prepare a thorough response explaining the case or matter.

5.  The Board, insurance company or governmental agency can be contacted to determine what stage the investigation is at so that the appropriate response. This is often easier for your attorney to do since the investigator may be open with him or her. In addition, anything you say is evidence and even impromptu comments like "I didn't do anything wrong" or "I don't remember this person" can be used against you later in ways that are difficult to anticipate when they are said.

6.  Do not alter, backdate or create any records unless such records are properly created and dated.  This can lead to professional misconduct charges and can lead to obstruction of justice charges.

7.  As mentioned above, make sure the entire file is copied. If there are any missing records, handle it now and conduct a thorough and diligent search. I have seen cases proceed to the interview stage because the file appeared to be deficient and below the standard of care simply because there were missing records.

8.  Once you hire an attorney, have him or her send a letter of representation so the
Board contacts the attorney and does not show up at your office for an impromptu interview.  Be prepared on how you and your staff can politely decline requests for interviews without your attorney present.

9.  Be prepared for any interviews. It is key to be prepared and treat it as if you were testifying in court. Lack of preparation hurts in many ways since they are recorded. Sometimes it may be decided that there should be no interview

10.  You should also look into whether your malpractice coverage will cover the cost of the attorney. Do not fear that your premiums will go up because insurance carriers prefer that things be handled professionally from the beginning because it prevents malpractice or other cases. Missing documentation in charts, failure to produce entire charts and failure to explain issues early on or obtain expert help can make things worse.

11.  Think about whether this case merits hiring an expert at an early stage. At a minimum, it may make sense to have at least another professional in the same field to review the chart in an objective to see if they spot any issues that you and the attorney may be missing.

12.  If there are issues that you see, think about whether a compliance or corrective action plan should be started.  Think about whether further education is needed (such as continuing education) in the area at issue including record keeping classes.  The Boards want to see that the professionals can spot these issues and fix their own mistakes. This is mitigating and rehabilitative evidence.

This is simply a starting point and it is critical to treat each case differently and not in a cookie cutter manner.  In cases where there are fraud or other issues that could be the basis of criminal charges, they may be handled somewhat differently but it is key to address it early.

If you want advice from our law firm, feel free to contact us or seek the advice of experienced counsel at the earliest opportunity.

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
Phone: 213-233-2260
Email:  tgreen@greenassoc.com
Website: www.greenassoc.com

How Does Medicare And Its Fiscal Intermediaries Pick Which Doctors And Providers To Audit? CMS Releases Information From 2012 Fee For Service - What Can You Do With This Information?

If you are a Medicare provider (physician or supplier) you will be audited.  The issue is when and why? CMS has recently released some data that Medicare providers and health care lawyers, accountants and consultants should review to understand where they and their clients stand with respect to other providers who bill the same procedure codes for Medicare Part B, fee-for-service (not HMO). 

Do you remember the old Avis car rental ads about "We're No. 2 . . . so pick us because we try harder?" Well, in the Medicare world it is not good to be Number 1, 2 or 3 or anything that is above the bell curve.  If your company or group is, you will be targeted for an audit.  You can provide incredible quality of care, have great records and impeccable credentials but if you are billing higher for your specialty that the norm or are billing more than others in the same zip code, that is a typical ground for an audit.  

How can you tell where you as a provider falls? For calendar year 2012, you can search the Centers for Medicare and Medicaid Services (CMS) database.  CMS claims it released this information “to make our healthcare system more transparent, affordable, and accountable.”  CMS allows you to download the entire file in Excel format. 

CMS has prepared a public data set entitled “theMedicare Provider Utilization and Payment Data: Physician and Other SupplierPublic Use File.” For short, let’s call it “CMS 2012 Physician and Other Supplier PUF.” It contains information on:

(1) utilization;

(2) payment (allowed amount and Medicare payment); and

(3) submitted charges.

It is organized by (a) National Provider Identifier (NPI), (b) Healthcare Common Procedure Coding System (HCPCS) code, and (c) place of service. You can therefore search by codes and zip code to see where you or your client will fall.

The New York Times has taken this same data and created a searchable database aimed at the consumer in an article entitled “How Much Medicare Pays For Your Doctor’s Care?” This means that in a quick glance, anyone can see how much Medicare paid you or your business in 2012. This means employees, competitors, patients, marketers, ex-spouses, and so on.  It also has the provider’s address.  Be prepared for others to discover this information. The NYT also had an article outing some of the physicians who received the largest payments.  Privacy as we used to know it does not exist.  I am still in shock that CMS prepared the information in this way and released this information without respecting some element of financial privacy.

Commentary:  Information is power. Use this to your own advantage and see where you land and understand that if you are high on the curve for your specialty, HCPCS codes or zip code, then you are more likely to be audited or targeted.  You may even have private insurance companies evaluating you once they know your Medicare numbers.  If there are good reasons for your office being higher than the norm, be prepared to demonstrate to Medicare and the carriers the reasons. 

I have been to numerous audits where the auditors frankly told my provider client that they should work on staying under the top of the bell curve in order to avoid future audits. If that will not work for your office, make sure your practice or company is audit ready, documentation is well done and will pass an audit.  Medicare fee-for-service is great for cash flow but it is useless if there will be overpayments and money has to be paid back due to illegible charts, missing procedure notes, evaluation and management notes that do not support the level of service billed even though the time was spent. Auditing does not consider quality of care. It looks at whether the records support the services billed. 

Posted by Tracy Green, Esq.

Green and Associates, Attorneys at Law

Phone: 213-233-2260

Email: tgreen@greenassoc.com

Website: www.greenassoc.com

Health Care Attorney Tracy Green Quoted in USA Today Article On Chiropractors Being One Largest Medicare Billers. Article Is Result of CMS Releases for First Time Data On Medicare Payments For 2012 By Provider.

Ever since Medicare decided last month to release its 2012 data showing all the payors (physicians and other suppliers), journalists have been reviewing the data and trying to determine how certain providers are getting paid such large amounts. The CMS website has all the data in an Excel spreadsheet that can be downloaded and each physician and supplier can be searched. It's actually an incredible disclosure of private information in that physicians' and suppliers' addresses are there as well as their collections.

I must admit that I searched for my own clients to let them know what the data revealed and gave my clients a heads' up that they may get calls from reporters (which happened in a couple of cases). But providers should review this data so they know what is there. Technically, this is private information but be aware that your patients, employees, friends, ex-spouses, et al., can review this to see your gross collections (of course it does not address

For many of the physicians and suppliers, the numbers are misleading since the billing may reflect an entire group that is being billed under the name of one owner. For others it may be an accurate reflection. However, this is the first time the collections have ever been revealed. The New York Times has posted a link that allows one to search by provider name.

One of the questions that arose is how are chiropractors such a large Medicare group and why are their billings so high? USA Today looked at chiropractors and in the article entitled "Some Chiropractors Making Big Medicare Paid Adjustments," I was quoted on why chiropractors are being looked at in particular. This reporter's editor was particularly interested in chiropractors.

My quote was:

"Los Angeles health care lawyer Tracy Green has represented many chiropractors and says the specialty has "a fair amount of regulatory problems and fraud." Part of the problem is that "they are the ones doing the care" frequently in auto insurance fraud cases and some run pain management clinics, a field that's closely watched given all the pain medication abuse and fraud."

Although it doesn't reflect fully my comments, it is important for providers to see where they are in this list and how they rank compared to similar providers since it will be used as a source of audits and scrutiny. There is no question that physical therapy and chiropractor providers will be at risk for more audits since the charting requirements are incredibly strict and CMS often challenges on medical necessity.

Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
Los Angeles, California 90017
Phone: 213-233-2260
Email: tgreen@greenassoc.com