Alicia Gallegos

Physicians are praising new guidance from the federal government aiming to ensure that insurers are properly covering contraception methods and services as required under the Affordable Care Act.

On May 11, the departments of Health & Human Services (HHS), Labor, and the Treasury issued guidance to insurers clarifying that they must cover – without cost-sharing – at least one form of contraception under each of the Food and Drug Administration’s approved birth control methods. This includes the ring, the patch and intrauterine devices.

Dr. Mark S. DeFrancesco, president of the American Congress of Obstetricians and Gynecologists (ACOG), lauded the guidance, calling it much needed to compel insurers to comply with the ACA’s birth control requirements.

“ACOG hopes that today’s clarification from the administration will help ensure that all FDA-approved methods of birth control are covered by insurance companies, as mandated by the Affordable Care Act, so that every woman is able to get the contraceptive that is right for her,” Dr. DeFrancesco said in a statement. “We will continue to monitor insurance coverage practices regarding preventive services, including contraceptives, and look forward to continued work with HHS to ensure full and appropriate implementation of the ACA’s mandates.”

In its announcement, HHS acknowledged that insurance companies have been confused about the specific types of contraception that should be covered under the ACA, and that the government has received complaints by patients, doctors, and lawmakers about the lack of coverage.

The ACA requires that preventive services such as contraception and well-woman visits be covered without out-of-pocket expenses like copays or deductibles. However, recent reports by the National Women’s Law Center and the Kaiser Family Foundation found that insurers were frequently dismissing the requirements.

In its guidance, the government said insurers must cover at least one form of contraception under each of the 18 methods that the FDA identifies in its current Birth Control Guide.

One problem identified in the Kaiser Family Foundation report was that some insurers covering oral contraceptives with no cost sharing were imposing copays for the vaginal contraceptive ring. The rationale was that the contraceptives had an equivalent chemical composition and only differed in the delivery method. Under the newly issued guidance, that approach would be prohibited.

For hormonal methods, plans must cover (without cost sharing) all three oral contraceptive methods (combined, progestin-only, and extended/continuous use), injectables, implants, the vaginal contraceptive ring, the contraceptive patch, emergency contraception (Plan B/Plan B One Step/Next Choice), emergency contraception (Ella), and IUDs with progestin.

Additionally, the guidance clarifies that, if a woman is at increased risk for having a harmful mutation in genes that suppress tumors – the BRCA-1 or BRCA-2 cancer susceptibility gene – a plan must cover her preventive screening, genetic counseling, and BRCA genetic testing with no cost-sharing.

Insurers also cannot limit preventive services based on an individual’s sex assigned at birth, gender identity, or recorded gender. Health plans also must cover preventive services that a patient’s provider – not an insurance company – determines are medically appropriate.

The instructions make clear a health plan covering dependent children must provide recommended preventive services for those dependents, including services related to pregnancy, preconception, and prenatal care. HHS adds that insurers cannot impose cost-sharing for anesthesia services performed in connection with preventive colonoscopies.

Physicians are grateful to see the guidance being issued after encountering many cases in which insurers have refused to cover needed women’s care, said Dr. Nancy L. Stanwood, board chair for Physicians for Reproductive Health.

“As physicians, we have seen multiple cases of women being wrongfully denied contraceptive coverage they have paid for and are entitled to by law,” Dr. Stanwood said in a statement. “Today’s announcement by the administration says loud and clear that plans must cover the full range of contraceptive methods, and women’s health will be better for it.”

[email protected]

On Twitter @legal_med

Physicians are praising new guidance from the federal government aiming to ensure that insurers are properly covering contraception methods and services as required under the Affordable Care Act.

On May 11, the departments of Health & Human Services (HHS), Labor, and the Treasury issued guidance to insurers clarifying that they must cover – without cost-sharing – at least one form of contraception under each of the Food and Drug Administration’s approved birth control methods. This includes the ring, the patch and intrauterine devices.

Dr. Mark S. DeFrancesco, president of the American Congress of Obstetricians and Gynecologists (ACOG), lauded the guidance, calling it much needed to compel insurers to comply with the ACA’s birth control requirements.

“ACOG hopes that today’s clarification from the administration will help ensure that all FDA-approved methods of birth control are covered by insurance companies, as mandated by the Affordable Care Act, so that every woman is able to get the contraceptive that is right for her,” Dr. DeFrancesco said in a statement. “We will continue to monitor insurance coverage practices regarding preventive services, including contraceptives, and look forward to continued work with HHS to ensure full and appropriate implementation of the ACA’s mandates.”

In its announcement, HHS acknowledged that insurance companies have been confused about the specific types of contraception that should be covered under the ACA, and that the government has received complaints by patients, doctors, and lawmakers about the lack of coverage.

The ACA requires that preventive services such as contraception and well-woman visits be covered without out-of-pocket expenses like copays or deductibles. However, recent reports by the National Women’s Law Center and the Kaiser Family Foundation found that insurers were frequently dismissing the requirements.

In its guidance, the government said insurers must cover at least one form of contraception under each of the 18 methods that the FDA identifies in its current Birth Control Guide.

One problem identified in the Kaiser Family Foundation report was that some insurers covering oral contraceptives with no cost sharing were imposing copays for the vaginal contraceptive ring. The rationale was that the contraceptives had an equivalent chemical composition and only differed in the delivery method. Under the newly issued guidance, that approach would be prohibited.

For hormonal methods, plans must cover (without cost sharing) all three oral contraceptive methods (combined, progestin-only, and extended/continuous use), injectables, implants, the vaginal contraceptive ring, the contraceptive patch, emergency contraception (Plan B/Plan B One Step/Next Choice), emergency contraception (Ella), and IUDs with progestin.

Additionally, the guidance clarifies that, if a woman is at increased risk for having a harmful mutation in genes that suppress tumors – the BRCA-1 or BRCA-2 cancer susceptibility gene – a plan must cover her preventive screening, genetic counseling, and BRCA genetic testing with no cost-sharing.

Insurers also cannot limit preventive services based on an individual’s sex assigned at birth, gender identity, or recorded gender. Health plans also must cover preventive services that a patient’s provider – not an insurance company – determines are medically appropriate.

The instructions make clear a health plan covering dependent children must provide recommended preventive services for those dependents, including services related to pregnancy, preconception, and prenatal care. HHS adds that insurers cannot impose cost-sharing for anesthesia services performed in connection with preventive colonoscopies.

Physicians are grateful to see the guidance being issued after encountering many cases in which insurers have refused to cover needed women’s care, said Dr. Nancy L. Stanwood, board chair for Physicians for Reproductive Health.

“As physicians, we have seen multiple cases of women being wrongfully denied contraceptive coverage they have paid for and are entitled to by law,” Dr. Stanwood said in a statement. “Today’s announcement by the administration says loud and clear that plans must cover the full range of contraceptive methods, and women’s health will be better for it.”

[email protected]

On Twitter @legal_med

Physicians are praising new guidance from the federal government aiming to ensure that insurers are properly covering contraception methods and services as required under the Affordable Care Act.

On May 11, the departments of Health & Human Services (HHS), Labor, and the Treasury issued guidance to insurers clarifying that they must cover – without cost-sharing – at least one form of contraception under each of the Food and Drug Administration’s approved birth control methods. This includes the ring, the patch and intrauterine devices.

Dr. Mark S. DeFrancesco, president of the American Congress of Obstetricians and Gynecologists (ACOG), lauded the guidance, calling it much needed to compel insurers to comply with the ACA’s birth control requirements.

“ACOG hopes that today’s clarification from the administration will help ensure that all FDA-approved methods of birth control are covered by insurance companies, as mandated by the Affordable Care Act, so that every woman is able to get the contraceptive that is right for her,” Dr. DeFrancesco said in a statement. “We will continue to monitor insurance coverage practices regarding preventive services, including contraceptives, and look forward to continued work with HHS to ensure full and appropriate implementation of the ACA’s mandates.”

In its announcement, HHS acknowledged that insurance companies have been confused about the specific types of contraception that should be covered under the ACA, and that the government has received complaints by patients, doctors, and lawmakers about the lack of coverage.

The ACA requires that preventive services such as contraception and well-woman visits be covered without out-of-pocket expenses like copays or deductibles. However, recent reports by the National Women’s Law Center and the Kaiser Family Foundation found that insurers were frequently dismissing the requirements.

In its guidance, the government said insurers must cover at least one form of contraception under each of the 18 methods that the FDA identifies in its current Birth Control Guide.

One problem identified in the Kaiser Family Foundation report was that some insurers covering oral contraceptives with no cost sharing were imposing copays for the vaginal contraceptive ring. The rationale was that the contraceptives had an equivalent chemical composition and only differed in the delivery method. Under the newly issued guidance, that approach would be prohibited.

For hormonal methods, plans must cover (without cost sharing) all three oral contraceptive methods (combined, progestin-only, and extended/continuous use), injectables, implants, the vaginal contraceptive ring, the contraceptive patch, emergency contraception (Plan B/Plan B One Step/Next Choice), emergency contraception (Ella), and IUDs with progestin.

Additionally, the guidance clarifies that, if a woman is at increased risk for having a harmful mutation in genes that suppress tumors – the BRCA-1 or BRCA-2 cancer susceptibility gene – a plan must cover her preventive screening, genetic counseling, and BRCA genetic testing with no cost-sharing.

Insurers also cannot limit preventive services based on an individual’s sex assigned at birth, gender identity, or recorded gender. Health plans also must cover preventive services that a patient’s provider – not an insurance company – determines are medically appropriate.

The instructions make clear a health plan covering dependent children must provide recommended preventive services for those dependents, including services related to pregnancy, preconception, and prenatal care. HHS adds that insurers cannot impose cost-sharing for anesthesia services performed in connection with preventive colonoscopies.

Physicians are grateful to see the guidance being issued after encountering many cases in which insurers have refused to cover needed women’s care, said Dr. Nancy L. Stanwood, board chair for Physicians for Reproductive Health.

“As physicians, we have seen multiple cases of women being wrongfully denied contraceptive coverage they have paid for and are entitled to by law,” Dr. Stanwood said in a statement. “Today’s announcement by the administration says loud and clear that plans must cover the full range of contraceptive methods, and women’s health will be better for it.”

[email protected]

On Twitter @legal_med

The majority of malpractice settlement agreements made by a Texas health system included clauses that prevented details about the case from being released, but there was little standardization or consistency in such provisions, according to a study published online May 11 in JAMA Internal Medicine.

Such nondisclosure provisions, while common in settlements across the United States, run contrary to greater promotion of health care transparency and improved patient safety, the study’s authors said.

Dr. William M. Sage of the University of Texas at Austin, and his colleagues, analyzed settlement agreements made by the University of Texas System from 2001 to 2002, from 2006 to 2007, and from 2009 to 2012 (JAMA Intern. Med. 2015 May 11 [doi:10.1001/jamainternmed.2015.1035]). They chose the time frames to study the differences in settlements before, during, and after the enactment of tort reform in Texas.

In 2003, Texas amended its constitution and enacted legislation that capped noneconomic damages against physicians in medical malpractice cases at $250,000 and imposed limitations on personal-injury lawsuits.

During the study periods, the University of Texas System closed 715 malpractice claims and made 150 settlement payments. The median compensation paid by the university was $100,000, and the mean compensation was $185,372.

Excluding 20 cases involving non–University of Texas defendants and 6 minor dental injury cases, 89% of settlements (110 of 124) included nondisclosure provisions. All the nondisclosure clauses prohibited disclosure of the settlement terms and amount. The nondisclosure clauses ranged in length from 23 to 385 words. Ten of the nondisclosure clauses applied to all parties to the agreement, including the physicians and hospitals.

Of the nondisclosure provisions, 55.5% prohibited disclosure that the settlement had been reached, 46.4% prohibited disclosure of the facts of the claim, and 9.1% prohibited disclosure by the settling physicians and hospitals, as well as the plaintiff.

In addition, 2.7% of nondisclosure provisions specifically prohibited disparagement of the physicians or hospital by the claimant. Complaints to the Texas Medical Board or other regulatory bodies were prohibited in 26.4% of nondisclosure provision cases.

Researchers found that the 50 settlement agreements signed after tort reform took full effect in Texas (2009-2012) had stricter nondisclosure provisions than did the 60 signed in earlier years. Settlements made after tort reform were more likely to prohibit disclosure of the event of settlement, to prohibit disclosure of the facts of the claims, and to prohibit reporting to regulatory bodies.

The study authors noted that in response to the findings of their study, as of 2014, the University of Texas no longer restricts regulatory reporting in settlement agreements.

Nondisclosure clauses that go beyond nondisparagement, as well as restrictions on disclosing the payment amount, appear inconsistent with respect to patients and current approaches to improving the safety of medical care, noted Dr. Sage and his coauthors.

“In situations where the harm is more general or might occur again, confidential settlement of private litigation can be contrary to the public interest,” the authors wrote. “There is increasing consensus, even among early proponents of protected peer review, that greater transparency to patients and the public is necessary for safety to improve.”

The use of nondisclosure agreements should be reviewed elsewhere, the researchers suggested, including at institutions with communication-and-resolution programs.

The authors reported no conflicts of interest.

[email protected]

On Twitter @legal_med

The majority of malpractice settlement agreements made by a Texas health system included clauses that prevented details about the case from being released, but there was little standardization or consistency in such provisions, according to a study published online May 11 in JAMA Internal Medicine.

Such nondisclosure provisions, while common in settlements across the United States, run contrary to greater promotion of health care transparency and improved patient safety, the study’s authors said.

Dr. William M. Sage of the University of Texas at Austin, and his colleagues, analyzed settlement agreements made by the University of Texas System from 2001 to 2002, from 2006 to 2007, and from 2009 to 2012 (JAMA Intern. Med. 2015 May 11 [doi:10.1001/jamainternmed.2015.1035]). They chose the time frames to study the differences in settlements before, during, and after the enactment of tort reform in Texas.

In 2003, Texas amended its constitution and enacted legislation that capped noneconomic damages against physicians in medical malpractice cases at $250,000 and imposed limitations on personal-injury lawsuits.

During the study periods, the University of Texas System closed 715 malpractice claims and made 150 settlement payments. The median compensation paid by the university was $100,000, and the mean compensation was $185,372.

Excluding 20 cases involving non–University of Texas defendants and 6 minor dental injury cases, 89% of settlements (110 of 124) included nondisclosure provisions. All the nondisclosure clauses prohibited disclosure of the settlement terms and amount. The nondisclosure clauses ranged in length from 23 to 385 words. Ten of the nondisclosure clauses applied to all parties to the agreement, including the physicians and hospitals.

Of the nondisclosure provisions, 55.5% prohibited disclosure that the settlement had been reached, 46.4% prohibited disclosure of the facts of the claim, and 9.1% prohibited disclosure by the settling physicians and hospitals, as well as the plaintiff.

In addition, 2.7% of nondisclosure provisions specifically prohibited disparagement of the physicians or hospital by the claimant. Complaints to the Texas Medical Board or other regulatory bodies were prohibited in 26.4% of nondisclosure provision cases.

Researchers found that the 50 settlement agreements signed after tort reform took full effect in Texas (2009-2012) had stricter nondisclosure provisions than did the 60 signed in earlier years. Settlements made after tort reform were more likely to prohibit disclosure of the event of settlement, to prohibit disclosure of the facts of the claims, and to prohibit reporting to regulatory bodies.

The study authors noted that in response to the findings of their study, as of 2014, the University of Texas no longer restricts regulatory reporting in settlement agreements.

Nondisclosure clauses that go beyond nondisparagement, as well as restrictions on disclosing the payment amount, appear inconsistent with respect to patients and current approaches to improving the safety of medical care, noted Dr. Sage and his coauthors.

“In situations where the harm is more general or might occur again, confidential settlement of private litigation can be contrary to the public interest,” the authors wrote. “There is increasing consensus, even among early proponents of protected peer review, that greater transparency to patients and the public is necessary for safety to improve.”

The use of nondisclosure agreements should be reviewed elsewhere, the researchers suggested, including at institutions with communication-and-resolution programs.

The authors reported no conflicts of interest.

[email protected]

On Twitter @legal_med

The majority of malpractice settlement agreements made by a Texas health system included clauses that prevented details about the case from being released, but there was little standardization or consistency in such provisions, according to a study published online May 11 in JAMA Internal Medicine.

Such nondisclosure provisions, while common in settlements across the United States, run contrary to greater promotion of health care transparency and improved patient safety, the study’s authors said.

Dr. William M. Sage of the University of Texas at Austin, and his colleagues, analyzed settlement agreements made by the University of Texas System from 2001 to 2002, from 2006 to 2007, and from 2009 to 2012 (JAMA Intern. Med. 2015 May 11 [doi:10.1001/jamainternmed.2015.1035]). They chose the time frames to study the differences in settlements before, during, and after the enactment of tort reform in Texas.

In 2003, Texas amended its constitution and enacted legislation that capped noneconomic damages against physicians in medical malpractice cases at $250,000 and imposed limitations on personal-injury lawsuits.

During the study periods, the University of Texas System closed 715 malpractice claims and made 150 settlement payments. The median compensation paid by the university was $100,000, and the mean compensation was $185,372.

Excluding 20 cases involving non–University of Texas defendants and 6 minor dental injury cases, 89% of settlements (110 of 124) included nondisclosure provisions. All the nondisclosure clauses prohibited disclosure of the settlement terms and amount. The nondisclosure clauses ranged in length from 23 to 385 words. Ten of the nondisclosure clauses applied to all parties to the agreement, including the physicians and hospitals.

Of the nondisclosure provisions, 55.5% prohibited disclosure that the settlement had been reached, 46.4% prohibited disclosure of the facts of the claim, and 9.1% prohibited disclosure by the settling physicians and hospitals, as well as the plaintiff.

In addition, 2.7% of nondisclosure provisions specifically prohibited disparagement of the physicians or hospital by the claimant. Complaints to the Texas Medical Board or other regulatory bodies were prohibited in 26.4% of nondisclosure provision cases.

Researchers found that the 50 settlement agreements signed after tort reform took full effect in Texas (2009-2012) had stricter nondisclosure provisions than did the 60 signed in earlier years. Settlements made after tort reform were more likely to prohibit disclosure of the event of settlement, to prohibit disclosure of the facts of the claims, and to prohibit reporting to regulatory bodies.

The study authors noted that in response to the findings of their study, as of 2014, the University of Texas no longer restricts regulatory reporting in settlement agreements.

Nondisclosure clauses that go beyond nondisparagement, as well as restrictions on disclosing the payment amount, appear inconsistent with respect to patients and current approaches to improving the safety of medical care, noted Dr. Sage and his coauthors.

“In situations where the harm is more general or might occur again, confidential settlement of private litigation can be contrary to the public interest,” the authors wrote. “There is increasing consensus, even among early proponents of protected peer review, that greater transparency to patients and the public is necessary for safety to improve.”

The use of nondisclosure agreements should be reviewed elsewhere, the researchers suggested, including at institutions with communication-and-resolution programs.

The authors reported no conflicts of interest.

[email protected]

On Twitter @legal_med

Delay in treating fetal distress is the most common medical malpractice allegation made against ob.gyns., a study showed.

Of lawsuits filed against ob.gyns, 22% alleged that physicians did not treat fetal distress in a timely fashion, according to a study by the Doctors Company, a national medical liability insurer. The analysis, published in May, found that the most frequent contributor to the delayed treatment was physicians’ failure to act when presented with category II or category III fetal heart rate tracings predictive of metabolic acidemia.

The Doctors Company reviewed 882 obstetrics-related claims in its database that closed from 2007 to 2014. Of the claims, improper performance of vaginal delivery was the second most common allegation at 20%, followed by improper management of pregnancy at 17%.

Other allegations included delay in delivery, improper performance of operative delivery, improper choice of delivery method, and diagnosis-related claims.

Almost half of the cases involving improper performance of vaginal delivery related to brachial plexus injuries due to shoulder dystocia. Several of these cases involved vacuum extraction or forceps deliveries where the patient failed to progress or the mother was obese, according to the study. In some cases, neonates also had skull fractures and hematomas from high forceps deliveries. Maternal injuries included pelvic lacerations, tears, and fistulas.

Of the claims related to improper management of pregnancy, the cases involved failure to test for fetal abnormalities when indicated, failure to recognize complications of pregnancy, and failure to address abnormal findings. Case outcomes included intrauterine death, placental abruption, neonatal infections, neonatal brain injury, twin-to-twin transfusion, and maternal preeclampsia that led to stroke.

Expert physician and nurse reviewers at the Doctors Company also identified factors that contributed to patient injuries within the claims. The most common contributor to injuries – found in 34% of claims – was the physician’s selection and management of therapy. This included poor decisions regarding labor and delivery, augmentation of labor, methods of delivery, or timing of interventions.

Patient assessment issues were the second most common contributor to patient injuries at 32%. Such problems occurred when physicians disregarded available information (test results or documented findings in the medical record) and failed to order diagnostic tests for strep infections, elevated blood sugar, and hypertension.

In some cases, doctors ignored abnormal findings, such as the size of neonates, signs of preeclampsia, glycosuria, and elevated urine protein level, according to the report.

Poor technical performance (18%) also was a driver of patient injury. Examples included injuries related to known risks disclosed to the patient prior to the procedure, such as postpartum hemorrhage, brachial plexus injuries, and punctures or lacerations. Other contributers to patient injuries were failed communication between providers or between providers and patients, lack of documentation, and patient factors such as nonadherence to treatment plans.

The majority of the study’s findings pertaining to common medical malpractice allegations encountered by ob.gyns. were not surprising, said Dr. Susan C. Mann, an ob.gyn. at Beth Israel Deaconess Medical Center, Boston.

Ob.gyns. face daily challenges that can contribute to lawsuits, including competing demands and lack of time, said Dr. Mann, who is a member of the Doctors Company obstetrics advisory board. That’s why she recommends preparing for critical scenarios ahead of time to help prevent adverse events and possible litigation.

“Working closely with labor and delivery staff is very important to identify patients who have risk factors and [for] coordinating the plan of care with the team,” Dr. Mann said in an interview. “Training together for emergency drills for stat cesarean deliveries, shoulder dystocias, and postpartum hemorrhage is very useful. Having a common language to describe fetal heart rate tracings and shoulder dystocia documentation is helpful as well. Finally, establishing a culture in which providers feel comfortable speaking up and where there is a moral imperative to share safety concerns provides a safety net for both patients and providers.”

[email protected]

On Twitter @legal_med

Delay in treating fetal distress is the most common medical malpractice allegation made against ob.gyns., a study showed.

Of lawsuits filed against ob.gyns, 22% alleged that physicians did not treat fetal distress in a timely fashion, according to a study by the Doctors Company, a national medical liability insurer. The analysis, published in May, found that the most frequent contributor to the delayed treatment was physicians’ failure to act when presented with category II or category III fetal heart rate tracings predictive of metabolic acidemia.

The Doctors Company reviewed 882 obstetrics-related claims in its database that closed from 2007 to 2014. Of the claims, improper performance of vaginal delivery was the second most common allegation at 20%, followed by improper management of pregnancy at 17%.

Other allegations included delay in delivery, improper performance of operative delivery, improper choice of delivery method, and diagnosis-related claims.

Almost half of the cases involving improper performance of vaginal delivery related to brachial plexus injuries due to shoulder dystocia. Several of these cases involved vacuum extraction or forceps deliveries where the patient failed to progress or the mother was obese, according to the study. In some cases, neonates also had skull fractures and hematomas from high forceps deliveries. Maternal injuries included pelvic lacerations, tears, and fistulas.

Of the claims related to improper management of pregnancy, the cases involved failure to test for fetal abnormalities when indicated, failure to recognize complications of pregnancy, and failure to address abnormal findings. Case outcomes included intrauterine death, placental abruption, neonatal infections, neonatal brain injury, twin-to-twin transfusion, and maternal preeclampsia that led to stroke.

Expert physician and nurse reviewers at the Doctors Company also identified factors that contributed to patient injuries within the claims. The most common contributor to injuries – found in 34% of claims – was the physician’s selection and management of therapy. This included poor decisions regarding labor and delivery, augmentation of labor, methods of delivery, or timing of interventions.

Patient assessment issues were the second most common contributor to patient injuries at 32%. Such problems occurred when physicians disregarded available information (test results or documented findings in the medical record) and failed to order diagnostic tests for strep infections, elevated blood sugar, and hypertension.

In some cases, doctors ignored abnormal findings, such as the size of neonates, signs of preeclampsia, glycosuria, and elevated urine protein level, according to the report.

Poor technical performance (18%) also was a driver of patient injury. Examples included injuries related to known risks disclosed to the patient prior to the procedure, such as postpartum hemorrhage, brachial plexus injuries, and punctures or lacerations. Other contributers to patient injuries were failed communication between providers or between providers and patients, lack of documentation, and patient factors such as nonadherence to treatment plans.

The majority of the study’s findings pertaining to common medical malpractice allegations encountered by ob.gyns. were not surprising, said Dr. Susan C. Mann, an ob.gyn. at Beth Israel Deaconess Medical Center, Boston.

Ob.gyns. face daily challenges that can contribute to lawsuits, including competing demands and lack of time, said Dr. Mann, who is a member of the Doctors Company obstetrics advisory board. That’s why she recommends preparing for critical scenarios ahead of time to help prevent adverse events and possible litigation.

“Working closely with labor and delivery staff is very important to identify patients who have risk factors and [for] coordinating the plan of care with the team,” Dr. Mann said in an interview. “Training together for emergency drills for stat cesarean deliveries, shoulder dystocias, and postpartum hemorrhage is very useful. Having a common language to describe fetal heart rate tracings and shoulder dystocia documentation is helpful as well. Finally, establishing a culture in which providers feel comfortable speaking up and where there is a moral imperative to share safety concerns provides a safety net for both patients and providers.”

[email protected]

On Twitter @legal_med

Delay in treating fetal distress is the most common medical malpractice allegation made against ob.gyns., a study showed.

Of lawsuits filed against ob.gyns, 22% alleged that physicians did not treat fetal distress in a timely fashion, according to a study by the Doctors Company, a national medical liability insurer. The analysis, published in May, found that the most frequent contributor to the delayed treatment was physicians’ failure to act when presented with category II or category III fetal heart rate tracings predictive of metabolic acidemia.

The Doctors Company reviewed 882 obstetrics-related claims in its database that closed from 2007 to 2014. Of the claims, improper performance of vaginal delivery was the second most common allegation at 20%, followed by improper management of pregnancy at 17%.

Other allegations included delay in delivery, improper performance of operative delivery, improper choice of delivery method, and diagnosis-related claims.

Almost half of the cases involving improper performance of vaginal delivery related to brachial plexus injuries due to shoulder dystocia. Several of these cases involved vacuum extraction or forceps deliveries where the patient failed to progress or the mother was obese, according to the study. In some cases, neonates also had skull fractures and hematomas from high forceps deliveries. Maternal injuries included pelvic lacerations, tears, and fistulas.

Of the claims related to improper management of pregnancy, the cases involved failure to test for fetal abnormalities when indicated, failure to recognize complications of pregnancy, and failure to address abnormal findings. Case outcomes included intrauterine death, placental abruption, neonatal infections, neonatal brain injury, twin-to-twin transfusion, and maternal preeclampsia that led to stroke.

Expert physician and nurse reviewers at the Doctors Company also identified factors that contributed to patient injuries within the claims. The most common contributor to injuries – found in 34% of claims – was the physician’s selection and management of therapy. This included poor decisions regarding labor and delivery, augmentation of labor, methods of delivery, or timing of interventions.

Patient assessment issues were the second most common contributor to patient injuries at 32%. Such problems occurred when physicians disregarded available information (test results or documented findings in the medical record) and failed to order diagnostic tests for strep infections, elevated blood sugar, and hypertension.

In some cases, doctors ignored abnormal findings, such as the size of neonates, signs of preeclampsia, glycosuria, and elevated urine protein level, according to the report.

Poor technical performance (18%) also was a driver of patient injury. Examples included injuries related to known risks disclosed to the patient prior to the procedure, such as postpartum hemorrhage, brachial plexus injuries, and punctures or lacerations. Other contributers to patient injuries were failed communication between providers or between providers and patients, lack of documentation, and patient factors such as nonadherence to treatment plans.

The majority of the study’s findings pertaining to common medical malpractice allegations encountered by ob.gyns. were not surprising, said Dr. Susan C. Mann, an ob.gyn. at Beth Israel Deaconess Medical Center, Boston.

Ob.gyns. face daily challenges that can contribute to lawsuits, including competing demands and lack of time, said Dr. Mann, who is a member of the Doctors Company obstetrics advisory board. That’s why she recommends preparing for critical scenarios ahead of time to help prevent adverse events and possible litigation.

“Working closely with labor and delivery staff is very important to identify patients who have risk factors and [for] coordinating the plan of care with the team,” Dr. Mann said in an interview. “Training together for emergency drills for stat cesarean deliveries, shoulder dystocias, and postpartum hemorrhage is very useful. Having a common language to describe fetal heart rate tracings and shoulder dystocia documentation is helpful as well. Finally, establishing a culture in which providers feel comfortable speaking up and where there is a moral imperative to share safety concerns provides a safety net for both patients and providers.”

[email protected]

On Twitter @legal_med

CHICAGO– To achieve greater personal and professional satisfaction, clinicians should evaluate their values, practice positive thinking, and perform acts of gratitude, Dr. Angela Nuzzarello said at the annual meeting of the American Medical Women’s Association.

Finding ways to work smarter and generate optimal productivity can also contribute to increased happiness, said Dr. Nuzzarello, associate dean for student affairs for Oakland University William Beaumont School of Medicine and course director for PRISM, a longitudinal course that focuses on the personal development of medical students.

“You have to know when you are most productive,’” Dr. Nuzzarello said during the meeting. “I happen to be a morning person. For me to get up, get into work where it’s quiet, I can get a lot of work done before the place opens up. You need to know for yourself, when are you most productive.”

Delegating duties, making lists, removing distractions, and building in breaks can also help, she said. Clinicians should focus on one task at a time and not be afraid to say, “No,” to projects or extra work.

Dr. Nuzzarello said clinicians can rise above stress by reframing their state of mind when it comes to what’s important. Understand situations and circumstances that are beyond your control and stop dwelling on the past, she said. Dr. Nuzzarello often encounters students who regret not studying more before a big test or midterm. She counsels them to focus on the present day.

“Think about what you can do starting today, going forward, not, ‘Why did I screw up, and what would I do differently?’” she said. “All it does is burn up our energy to put into the things we need to work on.”

Dr. Nuzzarello added that clinicians should examine their values and pursue their definition of success. Often, a mismatch in values professionally can cause dissatisfaction, she said. It helps to revisit what success means to you and what provides the deepest satisfaction.

“We run into trouble when we try to measure ourselves by someone else’s values,” Dr. Nuzzarello said during the meeting. “For me, for my success, it’s not really about making money. It’s not really about publication or about fame. What I set as my goal is at the end of the day, do I have one person [with whom] I came into contact [who] feels better understood?”

Rekindling a passion or forgotten goal also builds on inner happiness. Questions to ask yourself include: What activity provides you with a sense of calm? What would you like to do better? Is there something you have put off learning?

Additionally, never underestimate the importance of close relationships, Dr. Nuzzarello noted. Social media and text messages should not take the place of physical interactions with family and friends. It could be as simple as reconnecting with an old friend or nurturing a current connection, Dr. Nuzzarello said.

“Start the conversation,” she said. “Autopilot doesn’t work. Prioritize your relationships.”

Daily practices that can add to happiness include positive affirmations, performing acts of gratitude and demonstrating kindness. Studies have shown that practicing gratitude leads to more contentment, she said. Examples include writing a thank you note or making a list of all you are thankful for. If you’re having a bad day, the best thing to do is pay someone a compliment, Dr. Nuzzarello adds. Showing kindness to others can do wonders for a clinician's own satisfaction. Positive affirmations are also essential.

“You should start each day with an affirmation,” she said. “Something that says to yourself that you’re positive and that you’re going to have a positive day. You are what you think you are. Happiness is a choice. Choose happiness.”

CHICAGO– To achieve greater personal and professional satisfaction, clinicians should evaluate their values, practice positive thinking, and perform acts of gratitude, Dr. Angela Nuzzarello said at the annual meeting of the American Medical Women’s Association.

Finding ways to work smarter and generate optimal productivity can also contribute to increased happiness, said Dr. Nuzzarello, associate dean for student affairs for Oakland University William Beaumont School of Medicine and course director for PRISM, a longitudinal course that focuses on the personal development of medical students.

“You have to know when you are most productive,’” Dr. Nuzzarello said during the meeting. “I happen to be a morning person. For me to get up, get into work where it’s quiet, I can get a lot of work done before the place opens up. You need to know for yourself, when are you most productive.”

Delegating duties, making lists, removing distractions, and building in breaks can also help, she said. Clinicians should focus on one task at a time and not be afraid to say, “No,” to projects or extra work.

Dr. Nuzzarello said clinicians can rise above stress by reframing their state of mind when it comes to what’s important. Understand situations and circumstances that are beyond your control and stop dwelling on the past, she said. Dr. Nuzzarello often encounters students who regret not studying more before a big test or midterm. She counsels them to focus on the present day.

“Think about what you can do starting today, going forward, not, ‘Why did I screw up, and what would I do differently?’” she said. “All it does is burn up our energy to put into the things we need to work on.”

Dr. Nuzzarello added that clinicians should examine their values and pursue their definition of success. Often, a mismatch in values professionally can cause dissatisfaction, she said. It helps to revisit what success means to you and what provides the deepest satisfaction.

“We run into trouble when we try to measure ourselves by someone else’s values,” Dr. Nuzzarello said during the meeting. “For me, for my success, it’s not really about making money. It’s not really about publication or about fame. What I set as my goal is at the end of the day, do I have one person [with whom] I came into contact [who] feels better understood?”

Rekindling a passion or forgotten goal also builds on inner happiness. Questions to ask yourself include: What activity provides you with a sense of calm? What would you like to do better? Is there something you have put off learning?

Additionally, never underestimate the importance of close relationships, Dr. Nuzzarello noted. Social media and text messages should not take the place of physical interactions with family and friends. It could be as simple as reconnecting with an old friend or nurturing a current connection, Dr. Nuzzarello said.

“Start the conversation,” she said. “Autopilot doesn’t work. Prioritize your relationships.”

Daily practices that can add to happiness include positive affirmations, performing acts of gratitude and demonstrating kindness. Studies have shown that practicing gratitude leads to more contentment, she said. Examples include writing a thank you note or making a list of all you are thankful for. If you’re having a bad day, the best thing to do is pay someone a compliment, Dr. Nuzzarello adds. Showing kindness to others can do wonders for a clinician's own satisfaction. Positive affirmations are also essential.

“You should start each day with an affirmation,” she said. “Something that says to yourself that you’re positive and that you’re going to have a positive day. You are what you think you are. Happiness is a choice. Choose happiness.”

CHICAGO– To achieve greater personal and professional satisfaction, clinicians should evaluate their values, practice positive thinking, and perform acts of gratitude, Dr. Angela Nuzzarello said at the annual meeting of the American Medical Women’s Association.

Finding ways to work smarter and generate optimal productivity can also contribute to increased happiness, said Dr. Nuzzarello, associate dean for student affairs for Oakland University William Beaumont School of Medicine and course director for PRISM, a longitudinal course that focuses on the personal development of medical students.

“You have to know when you are most productive,’” Dr. Nuzzarello said during the meeting. “I happen to be a morning person. For me to get up, get into work where it’s quiet, I can get a lot of work done before the place opens up. You need to know for yourself, when are you most productive.”

Delegating duties, making lists, removing distractions, and building in breaks can also help, she said. Clinicians should focus on one task at a time and not be afraid to say, “No,” to projects or extra work.

Dr. Nuzzarello said clinicians can rise above stress by reframing their state of mind when it comes to what’s important. Understand situations and circumstances that are beyond your control and stop dwelling on the past, she said. Dr. Nuzzarello often encounters students who regret not studying more before a big test or midterm. She counsels them to focus on the present day.

“Think about what you can do starting today, going forward, not, ‘Why did I screw up, and what would I do differently?’” she said. “All it does is burn up our energy to put into the things we need to work on.”

Dr. Nuzzarello added that clinicians should examine their values and pursue their definition of success. Often, a mismatch in values professionally can cause dissatisfaction, she said. It helps to revisit what success means to you and what provides the deepest satisfaction.

“We run into trouble when we try to measure ourselves by someone else’s values,” Dr. Nuzzarello said during the meeting. “For me, for my success, it’s not really about making money. It’s not really about publication or about fame. What I set as my goal is at the end of the day, do I have one person [with whom] I came into contact [who] feels better understood?”

Rekindling a passion or forgotten goal also builds on inner happiness. Questions to ask yourself include: What activity provides you with a sense of calm? What would you like to do better? Is there something you have put off learning?

Additionally, never underestimate the importance of close relationships, Dr. Nuzzarello noted. Social media and text messages should not take the place of physical interactions with family and friends. It could be as simple as reconnecting with an old friend or nurturing a current connection, Dr. Nuzzarello said.

“Start the conversation,” she said. “Autopilot doesn’t work. Prioritize your relationships.”

Daily practices that can add to happiness include positive affirmations, performing acts of gratitude and demonstrating kindness. Studies have shown that practicing gratitude leads to more contentment, she said. Examples include writing a thank you note or making a list of all you are thankful for. If you’re having a bad day, the best thing to do is pay someone a compliment, Dr. Nuzzarello adds. Showing kindness to others can do wonders for a clinician's own satisfaction. Positive affirmations are also essential.

“You should start each day with an affirmation,” she said. “Something that says to yourself that you’re positive and that you’re going to have a positive day. You are what you think you are. Happiness is a choice. Choose happiness.”

CHICAGO– To achieve greater personal and professional satisfaction, physicians should evaluate their values, practice positive thinking, and perform acts of gratitude, Dr. Angela Nuzzarello said at the annual meeting of the American Medical Women’s Association.

Finding ways to work smarter and generate optimal productivity can also contribute to increased happiness, said Dr. Nuzzarello, associate dean for student affairs for Oakland University William Beaumont School of Medicine and course director for PRISM, a longitudinal course that focuses on the personal development of medical students.

“You have to know when you are most productive,’” Dr. Nuzzarello said during the meeting. “I happen to be a morning person. For me to get up, get into work where it’s quiet, I can get a lot of work done before the place opens up. You need to know for yourself, when are you most productive.”

Delegating duties, making lists, removing distractions, and building in breaks can also help, she said. Physicians should focus on one task at a time and not be afraid to say, “No,” to projects or extra work.

Dr. Nuzzarello said physicians can rise above stress by reframing their state of mind when it comes to what’s important. Understand situations and circumstances that are beyond your control and stop dwelling on the past, she said. Dr. Nuzzarello often encounters students who regret not studying more before a big test or midterm. She counsels them to focus on the present day.

“Think about what you can do starting today, going forward, not, ‘Why did I screw up, and what would I do differently?’” she said. “All it does is burn up our energy to put into the things we need to work on.”

Dr. Nuzzarello added that physicians should examine their values and pursue their definition of success. Often, a mismatch in values professionally can cause dissatisfaction, she said. It helps to revisit what success means to you and what provides the deepest satisfaction.

“We run into trouble when we try to measure ourselves by someone else’s values,” Dr. Nuzzarello said during the meeting. “For me, for my success, it’s not really about making money. It’s not really about publication or about fame. What I set as my goal is at the end of the day, do I have one person [with whom] I came into contact [who] feels better understood?”

Rekindling a passion or forgotten goal also builds on inner happiness. Questions to ask yourself include: What activity provides you with a sense of calm? What would you like to do better? Is there something you have put off learning?

Additionally, never underestimate the importance of close relationships, Dr. Nuzzarello noted. Social media and text messages should not take the place of physical interactions with family and friends. It could be as simple as reconnecting with an old friend or nurturing a current connection, Dr. Nuzzarello said.

“Start the conversation,” she said. “Autopilot doesn’t work. Prioritize your relationships.”

Daily practices that can add to happiness include positive affirmations, performing acts of gratitude and demonstrating kindness. Studies have shown that practicing gratitude leads to more contentment, she said. Examples include writing a thank you note or making a list of all you are thankful for. If you’re having a bad day, the best thing to do is pay someone a compliment, Dr. Nuzzarello adds. Showing kindness to others can do wonders for a physician’s own satisfaction. Positive affirmations are also essential.

“You should start each day with an affirmation,” she said. “Something that says to yourself that you’re positive and that you’re going to have a positive day. You are what you think you are. Happiness is a choice. Choose happiness.”

[email protected]

On Twitter @legal_med

CHICAGO– To achieve greater personal and professional satisfaction, physicians should evaluate their values, practice positive thinking, and perform acts of gratitude, Dr. Angela Nuzzarello said at the annual meeting of the American Medical Women’s Association.

Finding ways to work smarter and generate optimal productivity can also contribute to increased happiness, said Dr. Nuzzarello, associate dean for student affairs for Oakland University William Beaumont School of Medicine and course director for PRISM, a longitudinal course that focuses on the personal development of medical students.

“You have to know when you are most productive,’” Dr. Nuzzarello said during the meeting. “I happen to be a morning person. For me to get up, get into work where it’s quiet, I can get a lot of work done before the place opens up. You need to know for yourself, when are you most productive.”

Delegating duties, making lists, removing distractions, and building in breaks can also help, she said. Physicians should focus on one task at a time and not be afraid to say, “No,” to projects or extra work.

Dr. Nuzzarello said physicians can rise above stress by reframing their state of mind when it comes to what’s important. Understand situations and circumstances that are beyond your control and stop dwelling on the past, she said. Dr. Nuzzarello often encounters students who regret not studying more before a big test or midterm. She counsels them to focus on the present day.

“Think about what you can do starting today, going forward, not, ‘Why did I screw up, and what would I do differently?’” she said. “All it does is burn up our energy to put into the things we need to work on.”

Dr. Nuzzarello added that physicians should examine their values and pursue their definition of success. Often, a mismatch in values professionally can cause dissatisfaction, she said. It helps to revisit what success means to you and what provides the deepest satisfaction.

“We run into trouble when we try to measure ourselves by someone else’s values,” Dr. Nuzzarello said during the meeting. “For me, for my success, it’s not really about making money. It’s not really about publication or about fame. What I set as my goal is at the end of the day, do I have one person [with whom] I came into contact [who] feels better understood?”

Rekindling a passion or forgotten goal also builds on inner happiness. Questions to ask yourself include: What activity provides you with a sense of calm? What would you like to do better? Is there something you have put off learning?

Additionally, never underestimate the importance of close relationships, Dr. Nuzzarello noted. Social media and text messages should not take the place of physical interactions with family and friends. It could be as simple as reconnecting with an old friend or nurturing a current connection, Dr. Nuzzarello said.

“Start the conversation,” she said. “Autopilot doesn’t work. Prioritize your relationships.”

Daily practices that can add to happiness include positive affirmations, performing acts of gratitude and demonstrating kindness. Studies have shown that practicing gratitude leads to more contentment, she said. Examples include writing a thank you note or making a list of all you are thankful for. If you’re having a bad day, the best thing to do is pay someone a compliment, Dr. Nuzzarello adds. Showing kindness to others can do wonders for a physician’s own satisfaction. Positive affirmations are also essential.

“You should start each day with an affirmation,” she said. “Something that says to yourself that you’re positive and that you’re going to have a positive day. You are what you think you are. Happiness is a choice. Choose happiness.”

[email protected]

On Twitter @legal_med

CHICAGO– To achieve greater personal and professional satisfaction, physicians should evaluate their values, practice positive thinking, and perform acts of gratitude, Dr. Angela Nuzzarello said at the annual meeting of the American Medical Women’s Association.

Finding ways to work smarter and generate optimal productivity can also contribute to increased happiness, said Dr. Nuzzarello, associate dean for student affairs for Oakland University William Beaumont School of Medicine and course director for PRISM, a longitudinal course that focuses on the personal development of medical students.

“You have to know when you are most productive,’” Dr. Nuzzarello said during the meeting. “I happen to be a morning person. For me to get up, get into work where it’s quiet, I can get a lot of work done before the place opens up. You need to know for yourself, when are you most productive.”

Delegating duties, making lists, removing distractions, and building in breaks can also help, she said. Physicians should focus on one task at a time and not be afraid to say, “No,” to projects or extra work.

Dr. Nuzzarello said physicians can rise above stress by reframing their state of mind when it comes to what’s important. Understand situations and circumstances that are beyond your control and stop dwelling on the past, she said. Dr. Nuzzarello often encounters students who regret not studying more before a big test or midterm. She counsels them to focus on the present day.

“Think about what you can do starting today, going forward, not, ‘Why did I screw up, and what would I do differently?’” she said. “All it does is burn up our energy to put into the things we need to work on.”

Dr. Nuzzarello added that physicians should examine their values and pursue their definition of success. Often, a mismatch in values professionally can cause dissatisfaction, she said. It helps to revisit what success means to you and what provides the deepest satisfaction.

“We run into trouble when we try to measure ourselves by someone else’s values,” Dr. Nuzzarello said during the meeting. “For me, for my success, it’s not really about making money. It’s not really about publication or about fame. What I set as my goal is at the end of the day, do I have one person [with whom] I came into contact [who] feels better understood?”

Rekindling a passion or forgotten goal also builds on inner happiness. Questions to ask yourself include: What activity provides you with a sense of calm? What would you like to do better? Is there something you have put off learning?

Additionally, never underestimate the importance of close relationships, Dr. Nuzzarello noted. Social media and text messages should not take the place of physical interactions with family and friends. It could be as simple as reconnecting with an old friend or nurturing a current connection, Dr. Nuzzarello said.

“Start the conversation,” she said. “Autopilot doesn’t work. Prioritize your relationships.”

Daily practices that can add to happiness include positive affirmations, performing acts of gratitude and demonstrating kindness. Studies have shown that practicing gratitude leads to more contentment, she said. Examples include writing a thank you note or making a list of all you are thankful for. If you’re having a bad day, the best thing to do is pay someone a compliment, Dr. Nuzzarello adds. Showing kindness to others can do wonders for a physician’s own satisfaction. Positive affirmations are also essential.

“You should start each day with an affirmation,” she said. “Something that says to yourself that you’re positive and that you’re going to have a positive day. You are what you think you are. Happiness is a choice. Choose happiness.”

[email protected]

On Twitter @legal_med

For Dr. Carla L. Kakutani, it has become increasingly challenging to obtain durable medical equipment (DME) for her Medicare patients.

In addition to proving equipment is medically necessary, a 2013 rule requires clinicians to document that a face-to-face encounter occurred between a patient and doctor or other health provider within 6 months of the DME order. (Enforcement of the rule has been delayed, but many providers are currently complying with this policy.) Dr. Kakutani understands the added regulations are meant to prevent fraudulent billings, she said, but the heavy paperwork and additional red tape are burdensome.

Courstesy Dr. Carla L. Kakutani

“The problem is, [the process] turns into this back and forth between you, the equipment company, and Medicare,” said Dr. Kakutani, a family physician in Winters, Calif. “Meanwhile, the patient is waiting, and you’re being distracted from other things. The bad apples are making life rough for the rest of us.”

As Medicare turns 50 this year, Dr. Kakutani is not alone in her frustrations. In recent years, the U.S. Department of Health & Human Services has greatly expanded its efforts to combat Medicare fraud, and physicians across the country are feeling the effects.

The government’s primary antifraud tool is the Health Care Fraud Prevention and Enforcement Action Team (HEAT), created in 2009 to identify and investigate health fraud and abuse. CMS also works with an array of contractors to detect Medicare fraud, including comprehensive error rate testing (CERT) contractors, Medicare administrative contractors (MACs), Medicare drug integrity contractors (MEDICs), recovery audit program auditors (RACs), and zone program integrity contractors (ZPICs). In 2010, CMS launched the Fraud Prevention System (FPS), a predictive analytics technology that runs algorithms on all Medicare claims prior to payment. And in 2012, CMS created the Program Integrity Command Center that brings together investigators from Medicare, Medicaid, and the law enforcement community to develop predictive analytics that identify fraud and mobilize a rapid response.

Just how much Medicare fraud is happening at any given time is difficult to measure. In 2014, the federal government recouped $3 billion in Medicare- and Medicaid-related fraud settlements and judgments, according to an HHS analysis. In 2013 and 2012, the government recovered about $4 billion each year. And it’s nearly impossible to determine the volume of Medicare fraud committed by doctors, said Dr. Julie Taitsman, chief medical officer for the HHS Office of Inspector General.

“Getting at the actual amount of Medicare fraud in general, or Medicare fraud by physicians, is incredibly difficult,” Dr. Taitsman said in an interview. “We can tell you about the fraud we’ve identified, but we don’t know the total body of fraud.”

Dr. Taitsman stressed that all providers play a major role in preventing health fraud and improving the quality of the Medicare system.

“Why it’s so important for physicians to practice with integrity – and we do believe that the vast majority of physicians practice with integrity – is because physicians control the bulk of care and services that [Medicare] patients receive,” Dr. Taitsman said. “That’s why it’s so important for physicians to be our partners in promoting high-quality care, promoting efficiency and compliance with the rules.”

But continually changing rules and guidelines make it difficult for many doctors to do just that, said Dr. James Szalados, an anesthesiologist and critical care physician based in Rochester, N.Y. Updates to payment rules, new OIG work plan targets, and growing documentation requirements can be overwhelming for practices.

“It’s not just the number of regulations, but it’s also the rate of change,” said Dr. Szalados, who is also an attorney. “For most doctors, it’s terrifying. They can’t keep up.”

Adhering to the latest regulations generally means hiring outside attorneys, consultants, and financial auditors who can help doctors self-police their practices, Dr. Szalados said.

Physicians also face Medicare fraud accusations from more directions than in the past, said Michael E. Clark, a Houston-based health law attorney and chair of the American Bar Association health law section. In addition to government claims, whistle-blower provisions under the False Claims Act allow individuals to file lawsuits alleging fraud and abuse on behalf of the government. If the government intervenes and the suit is successful, a whistle-blower can take home 15%-25% of money recovered. In 2014, the number of whistle-blower suits exceeded 700 for the second year in a row, according to the Department of Justice.

“A lot of people bringing these false claims actions are former or disgruntled employees or other doctors,” Mr. Clark said. “You might have a technical, regulatory type of theory, and yet it can be quickly changed into a fraud and abuse case.”

New laws have added to the challenge, Mr. Clark said. The Fraud Enforcement and Recovery Act (FERA), enacted in 2009, expands potential liability for false claims by applying the FCA to more entities and a larger range of transactions. The law also reduces the proof required to establish fault.

“FERA took away a lot of defenses that had been used successfully by defense counsel over the years on technical issues,” Mr. Clark said.

The antifraud climate has led many physicians to leave private practice or merge with hospitals or larger health systems, Dr. Szalados said. Others have resorted to intentionally underbilling to avoid claim scrutiny, according to Dr. Robert A. Lee, who serves on the board of directors for the American Academy of Family Physicians . After a third-party compliance review, Dr. Lee’s private practice felt the best course of action was to bill more conservatively, he said.

“We kind of overdocument and undercode,” Dr. Lee said in an interview. “Of course that’s not fair to the physicians because they’re not billing for what they did do.”

On a more positive note, providers are getting better at internal auditing and developing stronger compliance programs that address billing errors, said Alex T. Krouse, a health law attorney based in Mishawaka, Ind.

“I do think health care providers are getting more sophisticated and are really believing in the compliance-related function,” Mr. Krouse said in an interview. “That is helping and reducing the risk quite a bit.”

While antifraud enforcement will likely increase in the future, providers who follow regulations and implement recommended protocols shouldn’t be too worried, Mr. Krouse added.

“If you’re a group, and you’re doing internal audits and you’ve got a compliance program in place, and you’re really working to have a compliant organization, the government’s aggressiveness and fraud detection is going to be minimal,” he said. “The aggressive tactics are really for those groups or organizations that have a blatant disregard for these processes.”

8 Pro Tips for Avoiding Fraud Accusations

The possibility of coming under Medicare fraud scrutiny strikes fear in the heart of most physicians. Here’s what health law experts and federal officials recommend to stay in the clear:

• Designate a compliance officer. Assigning a specific employee to keep track of changing laws and regulations can help physicians remain compliant with antifraud regulations, said Mr. Krouse. The compliance officer should lead compliance efforts, inform staff of relevant rule changes, and take charge if billing practices come under government scrutiny.

• Retain a health law attorney. Seek the guidance of an experienced health law or Medicare fraud defense attorney should questions or billing problems arise, Mr. Clark recommended. Business or staff attorneys do not always have the needed expertise and can sometimes lead practices astray during critical times. Consider retaining a qualified, go-to health law attorney to answer questions and assist during crises.

• Develop a compliance program. Create strong compliance plans to address potential fraud, abuse, and billing issues, Dr. Taitsman advised. There is no one-size-fits all compliance plan, but the government offers suggested guidance about what plans should entail. No practice is too small to set up a compliance plan, she said.

• Perform internal audits. Internal audits should be a regular practice – annually or biennially – for all physicians, Mr. Krouse said. They can be completed by staff or a consultant.

• Send audit results to an attorney. If an internal audit is completed, the results should be conveyed first to an attorney, Mr. Clark said. Audit results shared directly with members of the medical practices are not privileged and could be communicated to the government. If an attorney shares audit results with physicians and practice leaders, the information is protected by the attorney-client privilege. The process limits the ability of staff members or disgruntled employees from sharing audit information or seeking whistle-blower claims.

• Build a strong disclosure protocol. The government is usually more lenient with health providers who are forthcoming about billing mistakes, Dr. Szalados said. Disclosing potential health fraud or billing errors can save the stress, time, and money associated with a government-initiated investigation. Under the Affordable Care Act, providers must return overpayments within 60 days of identifying them. Failing to report overpayments can lead to liability under the False Claims Act.

• Address billing errors immediately. If overbilling errors or systemic mistakes are found, doctors must do more than simply repay the government, Mr. Krouse said. Practices also must change their billing practices and develop an improvement plan. Have a process in place for how billing and coding issues will be addressed in the present and in the future, he recommended.

• Formulate a correction plan. Should a practice come under Medicare fraud suspicion, physicians should immediately analyze past billings. Conduct a thorough internal investigation that includes the extent of the problem and the scope of its threat to the practice, Mr. Krouse added. Create a corrective action plan and outline it to the government. A strong corrective plan goes a long way in negotiating settlements with the government, he said.

Various online resources are available to help physicians prevent Medicare fraud including a roadmap from CMS and guidance for new physicians by the OIG.

For Dr. Carla L. Kakutani, it has become increasingly challenging to obtain durable medical equipment (DME) for her Medicare patients.

In addition to proving equipment is medically necessary, a 2013 rule requires clinicians to document that a face-to-face encounter occurred between a patient and doctor or other health provider within 6 months of the DME order. (Enforcement of the rule has been delayed, but many providers are currently complying with this policy.) Dr. Kakutani understands the added regulations are meant to prevent fraudulent billings, she said, but the heavy paperwork and additional red tape are burdensome.

Courstesy Dr. Carla L. Kakutani

“The problem is, [the process] turns into this back and forth between you, the equipment company, and Medicare,” said Dr. Kakutani, a family physician in Winters, Calif. “Meanwhile, the patient is waiting, and you’re being distracted from other things. The bad apples are making life rough for the rest of us.”

As Medicare turns 50 this year, Dr. Kakutani is not alone in her frustrations. In recent years, the U.S. Department of Health & Human Services has greatly expanded its efforts to combat Medicare fraud, and physicians across the country are feeling the effects.

The government’s primary antifraud tool is the Health Care Fraud Prevention and Enforcement Action Team (HEAT), created in 2009 to identify and investigate health fraud and abuse. CMS also works with an array of contractors to detect Medicare fraud, including comprehensive error rate testing (CERT) contractors, Medicare administrative contractors (MACs), Medicare drug integrity contractors (MEDICs), recovery audit program auditors (RACs), and zone program integrity contractors (ZPICs). In 2010, CMS launched the Fraud Prevention System (FPS), a predictive analytics technology that runs algorithms on all Medicare claims prior to payment. And in 2012, CMS created the Program Integrity Command Center that brings together investigators from Medicare, Medicaid, and the law enforcement community to develop predictive analytics that identify fraud and mobilize a rapid response.

Just how much Medicare fraud is happening at any given time is difficult to measure. In 2014, the federal government recouped $3 billion in Medicare- and Medicaid-related fraud settlements and judgments, according to an HHS analysis. In 2013 and 2012, the government recovered about $4 billion each year. And it’s nearly impossible to determine the volume of Medicare fraud committed by doctors, said Dr. Julie Taitsman, chief medical officer for the HHS Office of Inspector General.

“Getting at the actual amount of Medicare fraud in general, or Medicare fraud by physicians, is incredibly difficult,” Dr. Taitsman said in an interview. “We can tell you about the fraud we’ve identified, but we don’t know the total body of fraud.”

Dr. Taitsman stressed that all providers play a major role in preventing health fraud and improving the quality of the Medicare system.

“Why it’s so important for physicians to practice with integrity – and we do believe that the vast majority of physicians practice with integrity – is because physicians control the bulk of care and services that [Medicare] patients receive,” Dr. Taitsman said. “That’s why it’s so important for physicians to be our partners in promoting high-quality care, promoting efficiency and compliance with the rules.”

But continually changing rules and guidelines make it difficult for many doctors to do just that, said Dr. James Szalados, an anesthesiologist and critical care physician based in Rochester, N.Y. Updates to payment rules, new OIG work plan targets, and growing documentation requirements can be overwhelming for practices.

“It’s not just the number of regulations, but it’s also the rate of change,” said Dr. Szalados, who is also an attorney. “For most doctors, it’s terrifying. They can’t keep up.”

Adhering to the latest regulations generally means hiring outside attorneys, consultants, and financial auditors who can help doctors self-police their practices, Dr. Szalados said.

Physicians also face Medicare fraud accusations from more directions than in the past, said Michael E. Clark, a Houston-based health law attorney and chair of the American Bar Association health law section. In addition to government claims, whistle-blower provisions under the False Claims Act allow individuals to file lawsuits alleging fraud and abuse on behalf of the government. If the government intervenes and the suit is successful, a whistle-blower can take home 15%-25% of money recovered. In 2014, the number of whistle-blower suits exceeded 700 for the second year in a row, according to the Department of Justice.

“A lot of people bringing these false claims actions are former or disgruntled employees or other doctors,” Mr. Clark said. “You might have a technical, regulatory type of theory, and yet it can be quickly changed into a fraud and abuse case.”

New laws have added to the challenge, Mr. Clark said. The Fraud Enforcement and Recovery Act (FERA), enacted in 2009, expands potential liability for false claims by applying the FCA to more entities and a larger range of transactions. The law also reduces the proof required to establish fault.

“FERA took away a lot of defenses that had been used successfully by defense counsel over the years on technical issues,” Mr. Clark said.

The antifraud climate has led many physicians to leave private practice or merge with hospitals or larger health systems, Dr. Szalados said. Others have resorted to intentionally underbilling to avoid claim scrutiny, according to Dr. Robert A. Lee, who serves on the board of directors for the American Academy of Family Physicians . After a third-party compliance review, Dr. Lee’s private practice felt the best course of action was to bill more conservatively, he said.

“We kind of overdocument and undercode,” Dr. Lee said in an interview. “Of course that’s not fair to the physicians because they’re not billing for what they did do.”

On a more positive note, providers are getting better at internal auditing and developing stronger compliance programs that address billing errors, said Alex T. Krouse, a health law attorney based in Mishawaka, Ind.

“I do think health care providers are getting more sophisticated and are really believing in the compliance-related function,” Mr. Krouse said in an interview. “That is helping and reducing the risk quite a bit.”

While antifraud enforcement will likely increase in the future, providers who follow regulations and implement recommended protocols shouldn’t be too worried, Mr. Krouse added.

“If you’re a group, and you’re doing internal audits and you’ve got a compliance program in place, and you’re really working to have a compliant organization, the government’s aggressiveness and fraud detection is going to be minimal,” he said. “The aggressive tactics are really for those groups or organizations that have a blatant disregard for these processes.”

8 Pro Tips for Avoiding Fraud Accusations

The possibility of coming under Medicare fraud scrutiny strikes fear in the heart of most physicians. Here’s what health law experts and federal officials recommend to stay in the clear:

• Designate a compliance officer. Assigning a specific employee to keep track of changing laws and regulations can help physicians remain compliant with antifraud regulations, said Mr. Krouse. The compliance officer should lead compliance efforts, inform staff of relevant rule changes, and take charge if billing practices come under government scrutiny.

• Retain a health law attorney. Seek the guidance of an experienced health law or Medicare fraud defense attorney should questions or billing problems arise, Mr. Clark recommended. Business or staff attorneys do not always have the needed expertise and can sometimes lead practices astray during critical times. Consider retaining a qualified, go-to health law attorney to answer questions and assist during crises.

• Develop a compliance program. Create strong compliance plans to address potential fraud, abuse, and billing issues, Dr. Taitsman advised. There is no one-size-fits all compliance plan, but the government offers suggested guidance about what plans should entail. No practice is too small to set up a compliance plan, she said.

• Perform internal audits. Internal audits should be a regular practice – annually or biennially – for all physicians, Mr. Krouse said. They can be completed by staff or a consultant.

• Send audit results to an attorney. If an internal audit is completed, the results should be conveyed first to an attorney, Mr. Clark said. Audit results shared directly with members of the medical practices are not privileged and could be communicated to the government. If an attorney shares audit results with physicians and practice leaders, the information is protected by the attorney-client privilege. The process limits the ability of staff members or disgruntled employees from sharing audit information or seeking whistle-blower claims.

• Build a strong disclosure protocol. The government is usually more lenient with health providers who are forthcoming about billing mistakes, Dr. Szalados said. Disclosing potential health fraud or billing errors can save the stress, time, and money associated with a government-initiated investigation. Under the Affordable Care Act, providers must return overpayments within 60 days of identifying them. Failing to report overpayments can lead to liability under the False Claims Act.

• Address billing errors immediately. If overbilling errors or systemic mistakes are found, doctors must do more than simply repay the government, Mr. Krouse said. Practices also must change their billing practices and develop an improvement plan. Have a process in place for how billing and coding issues will be addressed in the present and in the future, he recommended.

• Formulate a correction plan. Should a practice come under Medicare fraud suspicion, physicians should immediately analyze past billings. Conduct a thorough internal investigation that includes the extent of the problem and the scope of its threat to the practice, Mr. Krouse added. Create a corrective action plan and outline it to the government. A strong corrective plan goes a long way in negotiating settlements with the government, he said.

Various online resources are available to help physicians prevent Medicare fraud including a roadmap from CMS and guidance for new physicians by the OIG.

For Dr. Carla L. Kakutani, it has become increasingly challenging to obtain durable medical equipment (DME) for her Medicare patients.

In addition to proving equipment is medically necessary, a 2013 rule requires clinicians to document that a face-to-face encounter occurred between a patient and doctor or other health provider within 6 months of the DME order. (Enforcement of the rule has been delayed, but many providers are currently complying with this policy.) Dr. Kakutani understands the added regulations are meant to prevent fraudulent billings, she said, but the heavy paperwork and additional red tape are burdensome.

Courstesy Dr. Carla L. Kakutani

“The problem is, [the process] turns into this back and forth between you, the equipment company, and Medicare,” said Dr. Kakutani, a family physician in Winters, Calif. “Meanwhile, the patient is waiting, and you’re being distracted from other things. The bad apples are making life rough for the rest of us.”

As Medicare turns 50 this year, Dr. Kakutani is not alone in her frustrations. In recent years, the U.S. Department of Health & Human Services has greatly expanded its efforts to combat Medicare fraud, and physicians across the country are feeling the effects.

The government’s primary antifraud tool is the Health Care Fraud Prevention and Enforcement Action Team (HEAT), created in 2009 to identify and investigate health fraud and abuse. CMS also works with an array of contractors to detect Medicare fraud, including comprehensive error rate testing (CERT) contractors, Medicare administrative contractors (MACs), Medicare drug integrity contractors (MEDICs), recovery audit program auditors (RACs), and zone program integrity contractors (ZPICs). In 2010, CMS launched the Fraud Prevention System (FPS), a predictive analytics technology that runs algorithms on all Medicare claims prior to payment. And in 2012, CMS created the Program Integrity Command Center that brings together investigators from Medicare, Medicaid, and the law enforcement community to develop predictive analytics that identify fraud and mobilize a rapid response.

Just how much Medicare fraud is happening at any given time is difficult to measure. In 2014, the federal government recouped $3 billion in Medicare- and Medicaid-related fraud settlements and judgments, according to an HHS analysis. In 2013 and 2012, the government recovered about $4 billion each year. And it’s nearly impossible to determine the volume of Medicare fraud committed by doctors, said Dr. Julie Taitsman, chief medical officer for the HHS Office of Inspector General.

“Getting at the actual amount of Medicare fraud in general, or Medicare fraud by physicians, is incredibly difficult,” Dr. Taitsman said in an interview. “We can tell you about the fraud we’ve identified, but we don’t know the total body of fraud.”

Dr. Taitsman stressed that all providers play a major role in preventing health fraud and improving the quality of the Medicare system.

“Why it’s so important for physicians to practice with integrity – and we do believe that the vast majority of physicians practice with integrity – is because physicians control the bulk of care and services that [Medicare] patients receive,” Dr. Taitsman said. “That’s why it’s so important for physicians to be our partners in promoting high-quality care, promoting efficiency and compliance with the rules.”

But continually changing rules and guidelines make it difficult for many doctors to do just that, said Dr. James Szalados, an anesthesiologist and critical care physician based in Rochester, N.Y. Updates to payment rules, new OIG work plan targets, and growing documentation requirements can be overwhelming for practices.

“It’s not just the number of regulations, but it’s also the rate of change,” said Dr. Szalados, who is also an attorney. “For most doctors, it’s terrifying. They can’t keep up.”

Adhering to the latest regulations generally means hiring outside attorneys, consultants, and financial auditors who can help doctors self-police their practices, Dr. Szalados said.

Physicians also face Medicare fraud accusations from more directions than in the past, said Michael E. Clark, a Houston-based health law attorney and chair of the American Bar Association health law section. In addition to government claims, whistle-blower provisions under the False Claims Act allow individuals to file lawsuits alleging fraud and abuse on behalf of the government. If the government intervenes and the suit is successful, a whistle-blower can take home 15%-25% of money recovered. In 2014, the number of whistle-blower suits exceeded 700 for the second year in a row, according to the Department of Justice.

“A lot of people bringing these false claims actions are former or disgruntled employees or other doctors,” Mr. Clark said. “You might have a technical, regulatory type of theory, and yet it can be quickly changed into a fraud and abuse case.”

New laws have added to the challenge, Mr. Clark said. The Fraud Enforcement and Recovery Act (FERA), enacted in 2009, expands potential liability for false claims by applying the FCA to more entities and a larger range of transactions. The law also reduces the proof required to establish fault.

“FERA took away a lot of defenses that had been used successfully by defense counsel over the years on technical issues,” Mr. Clark said.

The antifraud climate has led many physicians to leave private practice or merge with hospitals or larger health systems, Dr. Szalados said. Others have resorted to intentionally underbilling to avoid claim scrutiny, according to Dr. Robert A. Lee, who serves on the board of directors for the American Academy of Family Physicians . After a third-party compliance review, Dr. Lee’s private practice felt the best course of action was to bill more conservatively, he said.

“We kind of overdocument and undercode,” Dr. Lee said in an interview. “Of course that’s not fair to the physicians because they’re not billing for what they did do.”

On a more positive note, providers are getting better at internal auditing and developing stronger compliance programs that address billing errors, said Alex T. Krouse, a health law attorney based in Mishawaka, Ind.

“I do think health care providers are getting more sophisticated and are really believing in the compliance-related function,” Mr. Krouse said in an interview. “That is helping and reducing the risk quite a bit.”

While antifraud enforcement will likely increase in the future, providers who follow regulations and implement recommended protocols shouldn’t be too worried, Mr. Krouse added.

“If you’re a group, and you’re doing internal audits and you’ve got a compliance program in place, and you’re really working to have a compliant organization, the government’s aggressiveness and fraud detection is going to be minimal,” he said. “The aggressive tactics are really for those groups or organizations that have a blatant disregard for these processes.”

8 Pro Tips for Avoiding Fraud Accusations

The possibility of coming under Medicare fraud scrutiny strikes fear in the heart of most physicians. Here’s what health law experts and federal officials recommend to stay in the clear:

• Designate a compliance officer. Assigning a specific employee to keep track of changing laws and regulations can help physicians remain compliant with antifraud regulations, said Mr. Krouse. The compliance officer should lead compliance efforts, inform staff of relevant rule changes, and take charge if billing practices come under government scrutiny.

• Retain a health law attorney. Seek the guidance of an experienced health law or Medicare fraud defense attorney should questions or billing problems arise, Mr. Clark recommended. Business or staff attorneys do not always have the needed expertise and can sometimes lead practices astray during critical times. Consider retaining a qualified, go-to health law attorney to answer questions and assist during crises.

• Develop a compliance program. Create strong compliance plans to address potential fraud, abuse, and billing issues, Dr. Taitsman advised. There is no one-size-fits all compliance plan, but the government offers suggested guidance about what plans should entail. No practice is too small to set up a compliance plan, she said.

• Perform internal audits. Internal audits should be a regular practice – annually or biennially – for all physicians, Mr. Krouse said. They can be completed by staff or a consultant.

• Send audit results to an attorney. If an internal audit is completed, the results should be conveyed first to an attorney, Mr. Clark said. Audit results shared directly with members of the medical practices are not privileged and could be communicated to the government. If an attorney shares audit results with physicians and practice leaders, the information is protected by the attorney-client privilege. The process limits the ability of staff members or disgruntled employees from sharing audit information or seeking whistle-blower claims.

• Build a strong disclosure protocol. The government is usually more lenient with health providers who are forthcoming about billing mistakes, Dr. Szalados said. Disclosing potential health fraud or billing errors can save the stress, time, and money associated with a government-initiated investigation. Under the Affordable Care Act, providers must return overpayments within 60 days of identifying them. Failing to report overpayments can lead to liability under the False Claims Act.

• Address billing errors immediately. If overbilling errors or systemic mistakes are found, doctors must do more than simply repay the government, Mr. Krouse said. Practices also must change their billing practices and develop an improvement plan. Have a process in place for how billing and coding issues will be addressed in the present and in the future, he recommended.

• Formulate a correction plan. Should a practice come under Medicare fraud suspicion, physicians should immediately analyze past billings. Conduct a thorough internal investigation that includes the extent of the problem and the scope of its threat to the practice, Mr. Krouse added. Create a corrective action plan and outline it to the government. A strong corrective plan goes a long way in negotiating settlements with the government, he said.

Various online resources are available to help physicians prevent Medicare fraud including a roadmap from CMS and guidance for new physicians by the OIG.

Medicare fraud and strategies to combat the crimes have become more intense as the program has grown in size and complexity, experts say.

As Medicare turns 50, Dr. Julie Taitsman, chief medical officer for the Department of Health & Human Services’ Office of Inspector General, discusses how doctors can avoid Medicare fraud. Dr. Taitsman shares common ways doctors and their billings come to the government’s attention and how doctors can fall prey to health fraud involvement.

In this exclusive video, Dr. Taitsman also discusses relevant health fraud laws that can impact physician practices and what doctors can expect of the OIG’s efforts to fight Medicare fraud in the future.

View the video interview on YouTube.

[email protected]

On Twitter @legal_med

Medicare fraud and strategies to combat the crimes have become more intense as the program has grown in size and complexity, experts say.

As Medicare turns 50, Dr. Julie Taitsman, chief medical officer for the Department of Health & Human Services’ Office of Inspector General, discusses how doctors can avoid Medicare fraud. Dr. Taitsman shares common ways doctors and their billings come to the government’s attention and how doctors can fall prey to health fraud involvement.

In this exclusive video, Dr. Taitsman also discusses relevant health fraud laws that can impact physician practices and what doctors can expect of the OIG’s efforts to fight Medicare fraud in the future.

View the video interview on YouTube.

[email protected]

On Twitter @legal_med

Medicare fraud and strategies to combat the crimes have become more intense as the program has grown in size and complexity, experts say.

As Medicare turns 50, Dr. Julie Taitsman, chief medical officer for the Department of Health & Human Services’ Office of Inspector General, discusses how doctors can avoid Medicare fraud. Dr. Taitsman shares common ways doctors and their billings come to the government’s attention and how doctors can fall prey to health fraud involvement.

In this exclusive video, Dr. Taitsman also discusses relevant health fraud laws that can impact physician practices and what doctors can expect of the OIG’s efforts to fight Medicare fraud in the future.

View the video interview on YouTube.

[email protected]

On Twitter @legal_med

For Dr. Carla L. Kakutani, it has become increasingly challenging to obtain durable medical equipment (DME) for her Medicare patients.

In addition to proving equipment is medically necessary, a 2013 rule requires physicians to document that a face-to-face encounter occurred between a patient and doctor or other health provider within 6 months of the DME order. (Enforcement of the rule has been delayed, but many physicians are currently complying with this policy.) Dr. Kakutani understands the added regulations are meant to prevent fraudulent billings, she said, but the heavy paperwork and additional red tape are burdensome.

Courstesy Dr. Carla L. Kakutani

“The problem is, [the process] turns into this back and forth between you, the equipment company, and Medicare,” said Dr. Kakutani, a family physician in Winters, Calif. “Meanwhile, the patient is waiting, and you’re being distracted from other things. The bad apples are making life rough for the rest of us.”

As Medicare turns 50 this year, Dr. Kakutani is not alone in her frustrations. In recent years, the U.S. Department of Health & Human Services has greatly expanded its efforts to combat Medicare fraud, and physicians across the country are feeling the effects.

The government’s primary antifraud tool is the Health Care Fraud Prevention and Enforcement Action Team (HEAT), created in 2009 to identify and investigate health fraud and abuse. CMS also works with an array of contractors to detect Medicare fraud, including comprehensive error rate testing (CERT) contractors, Medicare administrative contractors (MACs), Medicare drug integrity contractors (MEDICs), recovery audit program auditors (RACs), and zone program integrity contractors (ZPICs). In 2010, CMS launched the Fraud Prevention System (FPS), a predictive analytics technology that runs algorithms on all Medicare claims prior to payment. And in 2012, CMS created the Program Integrity Command Center that brings together investigators from Medicare, Medicaid, and the law enforcement community to develop predictive analytics that identify fraud and mobilize a rapid response.

Just how much Medicare fraud is happening at any given time is difficult to measure. In 2014, the federal government recouped $3 billion in Medicare- and Medicaid-related fraud settlements and judgments, according to an HHS analysis. In 2013 and 2012, the government recovered about $4 billion each year. And it’s nearly impossible to determine the volume of Medicare fraud committed by doctors, said Dr. Julie Taitsman, chief medical officer for the HHS Office of Inspector General.

“Getting at the actual amount of Medicare fraud in general, or Medicare fraud by physicians, is incredibly difficult,” Dr. Taitsman said in an interview. “We can tell you about the fraud we’ve identified, but we don’t know the total body of fraud.”

Dr. Taitsman stressed that all physicians play a major role in preventing health fraud and improving the quality of the Medicare system.

“Why it’s so important for physicians to practice with integrity – and we do believe that the vast majority of physicians practice with integrity – is because physicians control the bulk of care and services that [Medicare] patients receive,” Dr. Taitsman said. “That’s why it’s so important for physicians to be our partners in promoting high-quality care, promoting efficiency and compliance with the rules.”

But continually changing rules and guidelines make it difficult for many doctors to do just that, said Dr. James Szalados, an anesthesiologist and critical care physician based in Rochester, N.Y. Updates to payment rules, new OIG work plan targets, and growing documentation requirements can be overwhelming for practices.

“It’s not just the number of regulations, but it’s also the rate of change,” said Dr. Szalados, who is also an attorney. “For most doctors, it’s terrifying. They can’t keep up.”

Adhering to the latest regulations generally means hiring outside attorneys, consultants, and financial auditors who can help doctors self-police their practices, Dr. Szalados said.

Physicians also face Medicare fraud accusations from more directions than in the past, said Michael E. Clark, a Houston-based health law attorney and chair of the American Bar Association health law section. In addition to government claims, whistle-blower provisions under the False Claims Act allow individuals to file lawsuits alleging fraud and abuse on behalf of the government. If the government intervenes and the suit is successful, a whistle-blower can take home 15%-25% of money recovered. In 2014, the number of whistle-blower suits exceeded 700 for the second year in a row, according to the Department of Justice.

“A lot of people bringing these false claims actions are former or disgruntled employees or other doctors,” Mr. Clark said. “You might have a technical, regulatory type of theory, and yet it can be quickly changed into a fraud and abuse case.”

New laws have added to the challenge, Mr. Clark said. The Fraud Enforcement and Recovery Act (FERA), enacted in 2009, expands potential liability for false claims by applying the FCA to more entities and a larger range of transactions. The law also reduces the proof required to establish fault.

“FERA took away a lot of defenses that had been used successfully by defense counsel over the years on technical issues,” Mr. Clark said.

The antifraud climate has led many physicians to leave private practice or merge with hospitals or larger health systems, Dr. Szalados said. Other doctors have resorted to intentionally underbilling to avoid claim scrutiny, according to Dr. Robert A. Lee, who serves on the board of directors for the American Academy of Family Physicians . After a third-party compliance review, Dr. Lee’s private practice felt the best course of action was to bill more conservatively, he said.

“We kind of overdocument and undercode,” Dr. Lee said in an interview. “Of course that’s not fair to the physicians because they’re not billing for what they did do.”

On a more positive note, physicians are getting better at internal auditing and developing stronger compliance programs that address billing errors, said Alex T. Krouse, a health law attorney based in Mishawaka, Ind.

“I do think health care providers are getting more sophisticated and are really believing in the compliance-related function,” Mr. Krouse said in an interview. “That is helping and reducing the risk quite a bit.”

While antifraud enforcement will likely increase in the future, physicians that follow regulations and implement recommended protocols shouldn’t be too worried, Mr. Krouse added.

“If you’re a group, and you’re doing internal audits and you’ve got a compliance program in place, and you’re really working to have a compliant organization, the government’s aggressiveness and fraud detection is going to be minimal,” he said. “The aggressive tactics are really for those groups or organizations that have a blatant disregard for these processes.”

8 pro tips for avoiding fraud accusations

The possibility of coming under Medicare fraud scrutiny strikes fear in the heart of most physicians. Here’s what health law experts and federal officials recommend to stay in the clear:

• Designate a compliance officer. Assigning a specific employee to keep track of changing laws and regulations can help physicians remain compliant with antifraud regulations, said Mr. Krouse. The compliance officer should lead compliance efforts, inform staff of relevant rule changes, and take charge if billing practices come under government scrutiny.

• Retain a health law attorney. Seek the guidance of an experienced health law or Medicare fraud defense attorney should questions or billing problems arise, Mr. Clark recommended. Business or staff attorneys do not always have the needed expertise and can sometimes lead practices astray during critical times. Consider retaining a qualified, go-to health law attorney to answer questions and assist during crises.

• Develop a compliance program. Create strong compliance plans to address potential fraud, abuse, and billing issues, Dr. Taitsman advised. There is no one-size-fits all compliance plan, but the government offers suggested guidance about what plans should entail. No practice is too small to set up a compliance plan, she said.

• Perform internal audits. Internal audits should be a regular practice – annually or biennially – for all physicians, Mr. Krouse said. They can be completed by staff or a consultant.

• Send audit results to an attorney. If an internal audit is completed, the results should be conveyed first to an attorney, Mr. Clark said. Audit results shared directly with members of the medical practices are not privileged and could be communicated to the government. If an attorney shares audit results with physicians and practice leaders, the information is protected by the attorney-client privilege. The process limits the ability of staff members or disgruntled employees from sharing audit information or seeking whistle-blower claims.

• Build a strong disclosure protocol. The government is usually more lenient with health providers who are forthcoming about billing mistakes, Dr. Szalados said. Disclosing potential health fraud or billing errors can save the stress, time, and money associated with a government-initiated investigation. Under the Affordable Care Act, providers must return overpayments within 60 days of identifying them. Failing to report overpayments can lead to liability under the False Claims Act.

• Address billing errors immediately. If overbilling errors or systemic mistakes are found, doctors must do more than simply repay the government, Mr. Krouse said. Practices also must change their billing practices and develop an improvement plan. Have a process in place for how billing and coding issues will be addressed in the present and in the future, he recommended.

• Formulate a correction plan. Should a practice come under Medicare fraud suspicion, physicians should immediately analyze past billings. Conduct a thorough internal investigation that includes the extent of the problem and the scope of its threat to the practice, Mr. Krouse added. Create a corrective action plan and outline it to the government. A strong corrective plan goes a long way in negotiating settlements with the government, he said.

Various online resources are available to help physicians prevent Medicare fraud including a roadmap from CMS and guidance for new physicians by the OIG.

[email protected]

On Twitter @legal_med

For Dr. Carla L. Kakutani, it has become increasingly challenging to obtain durable medical equipment (DME) for her Medicare patients.

In addition to proving equipment is medically necessary, a 2013 rule requires physicians to document that a face-to-face encounter occurred between a patient and doctor or other health provider within 6 months of the DME order. (Enforcement of the rule has been delayed, but many physicians are currently complying with this policy.) Dr. Kakutani understands the added regulations are meant to prevent fraudulent billings, she said, but the heavy paperwork and additional red tape are burdensome.

Courstesy Dr. Carla L. Kakutani

“The problem is, [the process] turns into this back and forth between you, the equipment company, and Medicare,” said Dr. Kakutani, a family physician in Winters, Calif. “Meanwhile, the patient is waiting, and you’re being distracted from other things. The bad apples are making life rough for the rest of us.”

As Medicare turns 50 this year, Dr. Kakutani is not alone in her frustrations. In recent years, the U.S. Department of Health & Human Services has greatly expanded its efforts to combat Medicare fraud, and physicians across the country are feeling the effects.

The government’s primary antifraud tool is the Health Care Fraud Prevention and Enforcement Action Team (HEAT), created in 2009 to identify and investigate health fraud and abuse. CMS also works with an array of contractors to detect Medicare fraud, including comprehensive error rate testing (CERT) contractors, Medicare administrative contractors (MACs), Medicare drug integrity contractors (MEDICs), recovery audit program auditors (RACs), and zone program integrity contractors (ZPICs). In 2010, CMS launched the Fraud Prevention System (FPS), a predictive analytics technology that runs algorithms on all Medicare claims prior to payment. And in 2012, CMS created the Program Integrity Command Center that brings together investigators from Medicare, Medicaid, and the law enforcement community to develop predictive analytics that identify fraud and mobilize a rapid response.

Just how much Medicare fraud is happening at any given time is difficult to measure. In 2014, the federal government recouped $3 billion in Medicare- and Medicaid-related fraud settlements and judgments, according to an HHS analysis. In 2013 and 2012, the government recovered about $4 billion each year. And it’s nearly impossible to determine the volume of Medicare fraud committed by doctors, said Dr. Julie Taitsman, chief medical officer for the HHS Office of Inspector General.

“Getting at the actual amount of Medicare fraud in general, or Medicare fraud by physicians, is incredibly difficult,” Dr. Taitsman said in an interview. “We can tell you about the fraud we’ve identified, but we don’t know the total body of fraud.”

Dr. Taitsman stressed that all physicians play a major role in preventing health fraud and improving the quality of the Medicare system.

“Why it’s so important for physicians to practice with integrity – and we do believe that the vast majority of physicians practice with integrity – is because physicians control the bulk of care and services that [Medicare] patients receive,” Dr. Taitsman said. “That’s why it’s so important for physicians to be our partners in promoting high-quality care, promoting efficiency and compliance with the rules.”

But continually changing rules and guidelines make it difficult for many doctors to do just that, said Dr. James Szalados, an anesthesiologist and critical care physician based in Rochester, N.Y. Updates to payment rules, new OIG work plan targets, and growing documentation requirements can be overwhelming for practices.

“It’s not just the number of regulations, but it’s also the rate of change,” said Dr. Szalados, who is also an attorney. “For most doctors, it’s terrifying. They can’t keep up.”

Adhering to the latest regulations generally means hiring outside attorneys, consultants, and financial auditors who can help doctors self-police their practices, Dr. Szalados said.

Physicians also face Medicare fraud accusations from more directions than in the past, said Michael E. Clark, a Houston-based health law attorney and chair of the American Bar Association health law section. In addition to government claims, whistle-blower provisions under the False Claims Act allow individuals to file lawsuits alleging fraud and abuse on behalf of the government. If the government intervenes and the suit is successful, a whistle-blower can take home 15%-25% of money recovered. In 2014, the number of whistle-blower suits exceeded 700 for the second year in a row, according to the Department of Justice.

“A lot of people bringing these false claims actions are former or disgruntled employees or other doctors,” Mr. Clark said. “You might have a technical, regulatory type of theory, and yet it can be quickly changed into a fraud and abuse case.”

New laws have added to the challenge, Mr. Clark said. The Fraud Enforcement and Recovery Act (FERA), enacted in 2009, expands potential liability for false claims by applying the FCA to more entities and a larger range of transactions. The law also reduces the proof required to establish fault.

“FERA took away a lot of defenses that had been used successfully by defense counsel over the years on technical issues,” Mr. Clark said.

The antifraud climate has led many physicians to leave private practice or merge with hospitals or larger health systems, Dr. Szalados said. Other doctors have resorted to intentionally underbilling to avoid claim scrutiny, according to Dr. Robert A. Lee, who serves on the board of directors for the American Academy of Family Physicians . After a third-party compliance review, Dr. Lee’s private practice felt the best course of action was to bill more conservatively, he said.

“We kind of overdocument and undercode,” Dr. Lee said in an interview. “Of course that’s not fair to the physicians because they’re not billing for what they did do.”

On a more positive note, physicians are getting better at internal auditing and developing stronger compliance programs that address billing errors, said Alex T. Krouse, a health law attorney based in Mishawaka, Ind.

“I do think health care providers are getting more sophisticated and are really believing in the compliance-related function,” Mr. Krouse said in an interview. “That is helping and reducing the risk quite a bit.”

While antifraud enforcement will likely increase in the future, physicians that follow regulations and implement recommended protocols shouldn’t be too worried, Mr. Krouse added.

“If you’re a group, and you’re doing internal audits and you’ve got a compliance program in place, and you’re really working to have a compliant organization, the government’s aggressiveness and fraud detection is going to be minimal,” he said. “The aggressive tactics are really for those groups or organizations that have a blatant disregard for these processes.”

8 pro tips for avoiding fraud accusations

The possibility of coming under Medicare fraud scrutiny strikes fear in the heart of most physicians. Here’s what health law experts and federal officials recommend to stay in the clear:

• Designate a compliance officer. Assigning a specific employee to keep track of changing laws and regulations can help physicians remain compliant with antifraud regulations, said Mr. Krouse. The compliance officer should lead compliance efforts, inform staff of relevant rule changes, and take charge if billing practices come under government scrutiny.

• Retain a health law attorney. Seek the guidance of an experienced health law or Medicare fraud defense attorney should questions or billing problems arise, Mr. Clark recommended. Business or staff attorneys do not always have the needed expertise and can sometimes lead practices astray during critical times. Consider retaining a qualified, go-to health law attorney to answer questions and assist during crises.

• Develop a compliance program. Create strong compliance plans to address potential fraud, abuse, and billing issues, Dr. Taitsman advised. There is no one-size-fits all compliance plan, but the government offers suggested guidance about what plans should entail. No practice is too small to set up a compliance plan, she said.

• Perform internal audits. Internal audits should be a regular practice – annually or biennially – for all physicians, Mr. Krouse said. They can be completed by staff or a consultant.

• Send audit results to an attorney. If an internal audit is completed, the results should be conveyed first to an attorney, Mr. Clark said. Audit results shared directly with members of the medical practices are not privileged and could be communicated to the government. If an attorney shares audit results with physicians and practice leaders, the information is protected by the attorney-client privilege. The process limits the ability of staff members or disgruntled employees from sharing audit information or seeking whistle-blower claims.

• Build a strong disclosure protocol. The government is usually more lenient with health providers who are forthcoming about billing mistakes, Dr. Szalados said. Disclosing potential health fraud or billing errors can save the stress, time, and money associated with a government-initiated investigation. Under the Affordable Care Act, providers must return overpayments within 60 days of identifying them. Failing to report overpayments can lead to liability under the False Claims Act.

• Address billing errors immediately. If overbilling errors or systemic mistakes are found, doctors must do more than simply repay the government, Mr. Krouse said. Practices also must change their billing practices and develop an improvement plan. Have a process in place for how billing and coding issues will be addressed in the present and in the future, he recommended.

• Formulate a correction plan. Should a practice come under Medicare fraud suspicion, physicians should immediately analyze past billings. Conduct a thorough internal investigation that includes the extent of the problem and the scope of its threat to the practice, Mr. Krouse added. Create a corrective action plan and outline it to the government. A strong corrective plan goes a long way in negotiating settlements with the government, he said.

Various online resources are available to help physicians prevent Medicare fraud including a roadmap from CMS and guidance for new physicians by the OIG.

[email protected]

On Twitter @legal_med

For Dr. Carla L. Kakutani, it has become increasingly challenging to obtain durable medical equipment (DME) for her Medicare patients.

In addition to proving equipment is medically necessary, a 2013 rule requires physicians to document that a face-to-face encounter occurred between a patient and doctor or other health provider within 6 months of the DME order. (Enforcement of the rule has been delayed, but many physicians are currently complying with this policy.) Dr. Kakutani understands the added regulations are meant to prevent fraudulent billings, she said, but the heavy paperwork and additional red tape are burdensome.

Courstesy Dr. Carla L. Kakutani

“The problem is, [the process] turns into this back and forth between you, the equipment company, and Medicare,” said Dr. Kakutani, a family physician in Winters, Calif. “Meanwhile, the patient is waiting, and you’re being distracted from other things. The bad apples are making life rough for the rest of us.”

As Medicare turns 50 this year, Dr. Kakutani is not alone in her frustrations. In recent years, the U.S. Department of Health & Human Services has greatly expanded its efforts to combat Medicare fraud, and physicians across the country are feeling the effects.

The government’s primary antifraud tool is the Health Care Fraud Prevention and Enforcement Action Team (HEAT), created in 2009 to identify and investigate health fraud and abuse. CMS also works with an array of contractors to detect Medicare fraud, including comprehensive error rate testing (CERT) contractors, Medicare administrative contractors (MACs), Medicare drug integrity contractors (MEDICs), recovery audit program auditors (RACs), and zone program integrity contractors (ZPICs). In 2010, CMS launched the Fraud Prevention System (FPS), a predictive analytics technology that runs algorithms on all Medicare claims prior to payment. And in 2012, CMS created the Program Integrity Command Center that brings together investigators from Medicare, Medicaid, and the law enforcement community to develop predictive analytics that identify fraud and mobilize a rapid response.

Just how much Medicare fraud is happening at any given time is difficult to measure. In 2014, the federal government recouped $3 billion in Medicare- and Medicaid-related fraud settlements and judgments, according to an HHS analysis. In 2013 and 2012, the government recovered about $4 billion each year. And it’s nearly impossible to determine the volume of Medicare fraud committed by doctors, said Dr. Julie Taitsman, chief medical officer for the HHS Office of Inspector General.

“Getting at the actual amount of Medicare fraud in general, or Medicare fraud by physicians, is incredibly difficult,” Dr. Taitsman said in an interview. “We can tell you about the fraud we’ve identified, but we don’t know the total body of fraud.”

Dr. Taitsman stressed that all physicians play a major role in preventing health fraud and improving the quality of the Medicare system.

“Why it’s so important for physicians to practice with integrity – and we do believe that the vast majority of physicians practice with integrity – is because physicians control the bulk of care and services that [Medicare] patients receive,” Dr. Taitsman said. “That’s why it’s so important for physicians to be our partners in promoting high-quality care, promoting efficiency and compliance with the rules.”

But continually changing rules and guidelines make it difficult for many doctors to do just that, said Dr. James Szalados, an anesthesiologist and critical care physician based in Rochester, N.Y. Updates to payment rules, new OIG work plan targets, and growing documentation requirements can be overwhelming for practices.

“It’s not just the number of regulations, but it’s also the rate of change,” said Dr. Szalados, who is also an attorney. “For most doctors, it’s terrifying. They can’t keep up.”

Adhering to the latest regulations generally means hiring outside attorneys, consultants, and financial auditors who can help doctors self-police their practices, Dr. Szalados said.

Physicians also face Medicare fraud accusations from more directions than in the past, said Michael E. Clark, a Houston-based health law attorney and chair of the American Bar Association health law section. In addition to government claims, whistle-blower provisions under the False Claims Act allow individuals to file lawsuits alleging fraud and abuse on behalf of the government. If the government intervenes and the suit is successful, a whistle-blower can take home 15%-25% of money recovered. In 2014, the number of whistle-blower suits exceeded 700 for the second year in a row, according to the Department of Justice.

“A lot of people bringing these false claims actions are former or disgruntled employees or other doctors,” Mr. Clark said. “You might have a technical, regulatory type of theory, and yet it can be quickly changed into a fraud and abuse case.”

New laws have added to the challenge, Mr. Clark said. The Fraud Enforcement and Recovery Act (FERA), enacted in 2009, expands potential liability for false claims by applying the FCA to more entities and a larger range of transactions. The law also reduces the proof required to establish fault.

“FERA took away a lot of defenses that had been used successfully by defense counsel over the years on technical issues,” Mr. Clark said.

The antifraud climate has led many physicians to leave private practice or merge with hospitals or larger health systems, Dr. Szalados said. Other doctors have resorted to intentionally underbilling to avoid claim scrutiny, according to Dr. Robert A. Lee, who serves on the board of directors for the American Academy of Family Physicians . After a third-party compliance review, Dr. Lee’s private practice felt the best course of action was to bill more conservatively, he said.

“We kind of overdocument and undercode,” Dr. Lee said in an interview. “Of course that’s not fair to the physicians because they’re not billing for what they did do.”

On a more positive note, physicians are getting better at internal auditing and developing stronger compliance programs that address billing errors, said Alex T. Krouse, a health law attorney based in Mishawaka, Ind.

“I do think health care providers are getting more sophisticated and are really believing in the compliance-related function,” Mr. Krouse said in an interview. “That is helping and reducing the risk quite a bit.”

While antifraud enforcement will likely increase in the future, physicians that follow regulations and implement recommended protocols shouldn’t be too worried, Mr. Krouse added.

“If you’re a group, and you’re doing internal audits and you’ve got a compliance program in place, and you’re really working to have a compliant organization, the government’s aggressiveness and fraud detection is going to be minimal,” he said. “The aggressive tactics are really for those groups or organizations that have a blatant disregard for these processes.”

8 pro tips for avoiding fraud accusations

The possibility of coming under Medicare fraud scrutiny strikes fear in the heart of most physicians. Here’s what health law experts and federal officials recommend to stay in the clear:

• Designate a compliance officer. Assigning a specific employee to keep track of changing laws and regulations can help physicians remain compliant with antifraud regulations, said Mr. Krouse. The compliance officer should lead compliance efforts, inform staff of relevant rule changes, and take charge if billing practices come under government scrutiny.

• Retain a health law attorney. Seek the guidance of an experienced health law or Medicare fraud defense attorney should questions or billing problems arise, Mr. Clark recommended. Business or staff attorneys do not always have the needed expertise and can sometimes lead practices astray during critical times. Consider retaining a qualified, go-to health law attorney to answer questions and assist during crises.

• Develop a compliance program. Create strong compliance plans to address potential fraud, abuse, and billing issues, Dr. Taitsman advised. There is no one-size-fits all compliance plan, but the government offers suggested guidance about what plans should entail. No practice is too small to set up a compliance plan, she said.

• Perform internal audits. Internal audits should be a regular practice – annually or biennially – for all physicians, Mr. Krouse said. They can be completed by staff or a consultant.

• Send audit results to an attorney. If an internal audit is completed, the results should be conveyed first to an attorney, Mr. Clark said. Audit results shared directly with members of the medical practices are not privileged and could be communicated to the government. If an attorney shares audit results with physicians and practice leaders, the information is protected by the attorney-client privilege. The process limits the ability of staff members or disgruntled employees from sharing audit information or seeking whistle-blower claims.

• Build a strong disclosure protocol. The government is usually more lenient with health providers who are forthcoming about billing mistakes, Dr. Szalados said. Disclosing potential health fraud or billing errors can save the stress, time, and money associated with a government-initiated investigation. Under the Affordable Care Act, providers must return overpayments within 60 days of identifying them. Failing to report overpayments can lead to liability under the False Claims Act.

• Address billing errors immediately. If overbilling errors or systemic mistakes are found, doctors must do more than simply repay the government, Mr. Krouse said. Practices also must change their billing practices and develop an improvement plan. Have a process in place for how billing and coding issues will be addressed in the present and in the future, he recommended.

• Formulate a correction plan. Should a practice come under Medicare fraud suspicion, physicians should immediately analyze past billings. Conduct a thorough internal investigation that includes the extent of the problem and the scope of its threat to the practice, Mr. Krouse added. Create a corrective action plan and outline it to the government. A strong corrective plan goes a long way in negotiating settlements with the government, he said.

Various online resources are available to help physicians prevent Medicare fraud including a roadmap from CMS and guidance for new physicians by the OIG.

[email protected]

On Twitter @legal_med

The conflict between physicians and nonphysicians over how scope of practice should be regulated is heating up as a new antitrust challenge pits a medical board against a pain clinic.

The owners of Axcess Medical Clinic Inc. are suing the Mississippi State Board of Medical Licensure over a rule that requires pain clinics be owned by a hospital or licensed physician. The clinic claims the rule is anticompetitive and forced it to close, according to a lawsuit filed April 24 in U.S. District Court for the Southern District of Mississippi.

©belchonock/thinkstockphotos.com

The lawsuit follows a February decision by the U.S. Supreme Court against a local dental board that attempted to stop nonprofessionals from providing teeth-whitening services. The Justices ruled the dental board had violated federal antitrust regulations because the board was not adequately supervised by the state. At the time, physician leaders worried the high court ruling could generate further lawsuits and alter state medical boards’ ability to regulate scope of practice.

The Mississippi case stems from a 2011 board rule that requires pain management clinics to be owned or operated by a hospital or licensed physician. The rule also requires that pain management clinics register with the board before doing business. Then-owner of Axcess Medical Clinic, Kenneth Charles Knight, requested that the clinic be grandfathered against complying with the rule because it opened in 2010, according to court records. The lawsuit claims the board failed to address the request, and Mr. Knight was forced to sell his ownership to a physician to salvage his investment. The physician later rescinded the purchase and the shares reverted back to Mr. Knight.

In 2012, Mr. Knight divested his majority ownership to family physician Dr. Fitzhugh L. Neal Jr., according to court documents. The board approved the clinic’s registration, but later requested more information about the physician’s proof of ownership. According to the lawsuit, the board found the physician was practicing pain management without proper qualifications and did not renew its registration. The clinic temporarily closed, but reopened a month later with a new registration, court documents state. In 2013, the licensure board issued new education and certification requirements for physicians to practice pain management. The requirements forced Axcess Medical Clinic to permanently close, the lawsuit states.

Plaintiffs Mr. Knight and Dr. Neal claim the board violated state and federal antitrust regulations by engaging in anticompetitive activities that deprived patients of choice. The suit also alleges that the board is made up of market participants who are not adequately supervised by the state.

An attorney for Axcess Medical Clinic said he could not provide timely comment on the case.

Dr. H. Vann Craig, executive director for the Mississippi State Board of Medical Licensure declined to comment on details of the litigation, but defended the board’s general practices. He noted that he is not aware of any Federal Trade Commission interest in the case.

“Our process is we try to deal with physicians and make sure they’re qualified to be doing what they are doing,” he said in an interview.

The board, which will be represented by the Mississippi Attorney General’s office, has not yet issued a formal response to the lawsuit.

The vagueness of the Supreme Court’s decision opened the door for further legal challenges, according to Joshua Prober, senior vice president and general counsel for the American Osteopathic Association (AOA). The high court’s decision found North Carolina’s model for state licensing board regulation did not provide for sufficient state oversight of a board made up of market competitors, but the ruling does not provide clear guidance on what’s expected from state governments in structuring state licensing boards, he said.

“Instead, it said its inquiry would be ‘flexible and context dependent,’ which appears to invite challenges to structures used in other states,” he said. “Because antitrust litigation provides that a successful plaintiff can recover treble damages, there can be a generous payoff for a successful challenge.”

The conflict between physicians and nonphysicians over how scope of practice should be regulated is heating up as a new antitrust challenge pits a medical board against a pain clinic.

The owners of Axcess Medical Clinic Inc. are suing the Mississippi State Board of Medical Licensure over a rule that requires pain clinics be owned by a hospital or licensed physician. The clinic claims the rule is anticompetitive and forced it to close, according to a lawsuit filed April 24 in U.S. District Court for the Southern District of Mississippi.

©belchonock/thinkstockphotos.com

The lawsuit follows a February decision by the U.S. Supreme Court against a local dental board that attempted to stop nonprofessionals from providing teeth-whitening services. The Justices ruled the dental board had violated federal antitrust regulations because the board was not adequately supervised by the state. At the time, physician leaders worried the high court ruling could generate further lawsuits and alter state medical boards’ ability to regulate scope of practice.

The Mississippi case stems from a 2011 board rule that requires pain management clinics to be owned or operated by a hospital or licensed physician. The rule also requires that pain management clinics register with the board before doing business. Then-owner of Axcess Medical Clinic, Kenneth Charles Knight, requested that the clinic be grandfathered against complying with the rule because it opened in 2010, according to court records. The lawsuit claims the board failed to address the request, and Mr. Knight was forced to sell his ownership to a physician to salvage his investment. The physician later rescinded the purchase and the shares reverted back to Mr. Knight.

In 2012, Mr. Knight divested his majority ownership to family physician Dr. Fitzhugh L. Neal Jr., according to court documents. The board approved the clinic’s registration, but later requested more information about the physician’s proof of ownership. According to the lawsuit, the board found the physician was practicing pain management without proper qualifications and did not renew its registration. The clinic temporarily closed, but reopened a month later with a new registration, court documents state. In 2013, the licensure board issued new education and certification requirements for physicians to practice pain management. The requirements forced Axcess Medical Clinic to permanently close, the lawsuit states.

Plaintiffs Mr. Knight and Dr. Neal claim the board violated state and federal antitrust regulations by engaging in anticompetitive activities that deprived patients of choice. The suit also alleges that the board is made up of market participants who are not adequately supervised by the state.

An attorney for Axcess Medical Clinic said he could not provide timely comment on the case.

Dr. H. Vann Craig, executive director for the Mississippi State Board of Medical Licensure declined to comment on details of the litigation, but defended the board’s general practices. He noted that he is not aware of any Federal Trade Commission interest in the case.

“Our process is we try to deal with physicians and make sure they’re qualified to be doing what they are doing,” he said in an interview.

The board, which will be represented by the Mississippi Attorney General’s office, has not yet issued a formal response to the lawsuit.

The vagueness of the Supreme Court’s decision opened the door for further legal challenges, according to Joshua Prober, senior vice president and general counsel for the American Osteopathic Association (AOA). The high court’s decision found North Carolina’s model for state licensing board regulation did not provide for sufficient state oversight of a board made up of market competitors, but the ruling does not provide clear guidance on what’s expected from state governments in structuring state licensing boards, he said.

“Instead, it said its inquiry would be ‘flexible and context dependent,’ which appears to invite challenges to structures used in other states,” he said. “Because antitrust litigation provides that a successful plaintiff can recover treble damages, there can be a generous payoff for a successful challenge.”

The conflict between physicians and nonphysicians over how scope of practice should be regulated is heating up as a new antitrust challenge pits a medical board against a pain clinic.

The owners of Axcess Medical Clinic Inc. are suing the Mississippi State Board of Medical Licensure over a rule that requires pain clinics be owned by a hospital or licensed physician. The clinic claims the rule is anticompetitive and forced it to close, according to a lawsuit filed April 24 in U.S. District Court for the Southern District of Mississippi.

©belchonock/thinkstockphotos.com

The lawsuit follows a February decision by the U.S. Supreme Court against a local dental board that attempted to stop nonprofessionals from providing teeth-whitening services. The Justices ruled the dental board had violated federal antitrust regulations because the board was not adequately supervised by the state. At the time, physician leaders worried the high court ruling could generate further lawsuits and alter state medical boards’ ability to regulate scope of practice.

The Mississippi case stems from a 2011 board rule that requires pain management clinics to be owned or operated by a hospital or licensed physician. The rule also requires that pain management clinics register with the board before doing business. Then-owner of Axcess Medical Clinic, Kenneth Charles Knight, requested that the clinic be grandfathered against complying with the rule because it opened in 2010, according to court records. The lawsuit claims the board failed to address the request, and Mr. Knight was forced to sell his ownership to a physician to salvage his investment. The physician later rescinded the purchase and the shares reverted back to Mr. Knight.

In 2012, Mr. Knight divested his majority ownership to family physician Dr. Fitzhugh L. Neal Jr., according to court documents. The board approved the clinic’s registration, but later requested more information about the physician’s proof of ownership. According to the lawsuit, the board found the physician was practicing pain management without proper qualifications and did not renew its registration. The clinic temporarily closed, but reopened a month later with a new registration, court documents state. In 2013, the licensure board issued new education and certification requirements for physicians to practice pain management. The requirements forced Axcess Medical Clinic to permanently close, the lawsuit states.

Plaintiffs Mr. Knight and Dr. Neal claim the board violated state and federal antitrust regulations by engaging in anticompetitive activities that deprived patients of choice. The suit also alleges that the board is made up of market participants who are not adequately supervised by the state.

An attorney for Axcess Medical Clinic said he could not provide timely comment on the case.

Dr. H. Vann Craig, executive director for the Mississippi State Board of Medical Licensure declined to comment on details of the litigation, but defended the board’s general practices. He noted that he is not aware of any Federal Trade Commission interest in the case.

“Our process is we try to deal with physicians and make sure they’re qualified to be doing what they are doing,” he said in an interview.

The board, which will be represented by the Mississippi Attorney General’s office, has not yet issued a formal response to the lawsuit.

The vagueness of the Supreme Court’s decision opened the door for further legal challenges, according to Joshua Prober, senior vice president and general counsel for the American Osteopathic Association (AOA). The high court’s decision found North Carolina’s model for state licensing board regulation did not provide for sufficient state oversight of a board made up of market competitors, but the ruling does not provide clear guidance on what’s expected from state governments in structuring state licensing boards, he said.

“Instead, it said its inquiry would be ‘flexible and context dependent,’ which appears to invite challenges to structures used in other states,” he said. “Because antitrust litigation provides that a successful plaintiff can recover treble damages, there can be a generous payoff for a successful challenge.”

The conflict between physicians and nonphysicians over how scope of practice should be regulated is heating up as a new antitrust challenge pits a medical board against a pain clinic.

The owners of Axcess Medical Clinic Inc. are suing the Mississippi State Board of Medical Licensure over a rule that requires pain clinics be owned by a hospital or licensed physician. The clinic claims the rule is anticompetitive and forced it to close, according to a lawsuit filed April 24 in U.S. District Court for the Southern District of Mississippi.

©belchonock/thinkstockphotos.com

The lawsuit follows a February decision by the U.S. Supreme Court against a local dental board that attempted to stop nonprofessionals from providing teeth-whitening services. The Justices ruled the dental board had violated federal antitrust regulations because the board was not adequately supervised by the state. At the time, physician leaders worried the high court ruling could generate further lawsuits and alter state medical boards’ ability to regulate scope of practice.

The Mississippi case stems from a 2011 board rule that requires pain management clinics to be owned or operated by a hospital or licensed physician. The rule also requires that pain management clinics register with the board before doing business. Then-owner of Axcess Medical Clinic, Kenneth Charles Knight, requested that the clinic be grandfathered against complying with the rule because it opened in 2010, according to court records. The lawsuit claims the board failed to address the request, and Mr. Knight was forced to sell his ownership to a physician to salvage his investment. The physician later rescinded the purchase and the shares reverted back to Mr. Knight.

In 2012, Mr. Knight divested his majority ownership to family physician Dr. Fitzhugh L. Neal Jr., according to court documents. The board approved the clinic’s registration, but later requested more information about the physician’s proof of ownership. According to the lawsuit, the board found the physician was practicing pain management without proper qualifications and did not renew its registration. The clinic temporarily closed, but reopened a month later with a new registration, court documents state. In 2013, the licensure board issued new education and certification requirements for physicians to practice pain management. The requirements forced Axcess Medical Clinic to permanently close, the lawsuit states.

Plaintiffs Mr. Knight and Dr. Neal claim the board violated state and federal antitrust regulations by engaging in anticompetitive activities that deprived patients of choice. The suit also alleges that the board is made up of market participants who are not adequately supervised by the state.

An attorney for Axcess Medical Clinic said he could not provide timely comment on the case.

Dr. H. Vann Craig, executive director for the Mississippi State Board of Medical Licensure declined to comment on details of the litigation, but defended the board’s general practices. He noted that he is not aware of any Federal Trade Commission interest in the case.

“Our process is we try to deal with physicians and make sure they’re qualified to be doing what they are doing,” he said in an interview.

The board, which will be represented by the Mississippi Attorney General’s office, has not yet issued a formal response to the lawsuit.

The vagueness of the Supreme Court’s decision opened the door for further legal challenges, according to Joshua Prober, senior vice president and general counsel for the American Osteopathic Association (AOA). The high court’s decision found North Carolina’s model for state licensing board regulation did not provide for sufficient state oversight of a board made up of market competitors, but the ruling does not provide clear guidance on what’s expected from state governments in structuring state licensing boards, he said.

“Instead, it said its inquiry would be ‘flexible and context dependent,’ which appears to invite challenges to structures used in other states,” he said. “Because antitrust litigation provides that a successful plaintiff can recover treble damages, there can be a generous payoff for a successful challenge.”

[email protected]

On Twitter @legal_med

The conflict between physicians and nonphysicians over how scope of practice should be regulated is heating up as a new antitrust challenge pits a medical board against a pain clinic.

The owners of Axcess Medical Clinic Inc. are suing the Mississippi State Board of Medical Licensure over a rule that requires pain clinics be owned by a hospital or licensed physician. The clinic claims the rule is anticompetitive and forced it to close, according to a lawsuit filed April 24 in U.S. District Court for the Southern District of Mississippi.

©belchonock/thinkstockphotos.com

The lawsuit follows a February decision by the U.S. Supreme Court against a local dental board that attempted to stop nonprofessionals from providing teeth-whitening services. The Justices ruled the dental board had violated federal antitrust regulations because the board was not adequately supervised by the state. At the time, physician leaders worried the high court ruling could generate further lawsuits and alter state medical boards’ ability to regulate scope of practice.

The Mississippi case stems from a 2011 board rule that requires pain management clinics to be owned or operated by a hospital or licensed physician. The rule also requires that pain management clinics register with the board before doing business. Then-owner of Axcess Medical Clinic, Kenneth Charles Knight, requested that the clinic be grandfathered against complying with the rule because it opened in 2010, according to court records. The lawsuit claims the board failed to address the request, and Mr. Knight was forced to sell his ownership to a physician to salvage his investment. The physician later rescinded the purchase and the shares reverted back to Mr. Knight.

In 2012, Mr. Knight divested his majority ownership to family physician Dr. Fitzhugh L. Neal Jr., according to court documents. The board approved the clinic’s registration, but later requested more information about the physician’s proof of ownership. According to the lawsuit, the board found the physician was practicing pain management without proper qualifications and did not renew its registration. The clinic temporarily closed, but reopened a month later with a new registration, court documents state. In 2013, the licensure board issued new education and certification requirements for physicians to practice pain management. The requirements forced Axcess Medical Clinic to permanently close, the lawsuit states.

Plaintiffs Mr. Knight and Dr. Neal claim the board violated state and federal antitrust regulations by engaging in anticompetitive activities that deprived patients of choice. The suit also alleges that the board is made up of market participants who are not adequately supervised by the state.

An attorney for Axcess Medical Clinic said he could not provide timely comment on the case.

Dr. H. Vann Craig, executive director for the Mississippi State Board of Medical Licensure declined to comment on details of the litigation, but defended the board’s general practices. He noted that he is not aware of any Federal Trade Commission interest in the case.

“Our process is we try to deal with physicians and make sure they’re qualified to be doing what they are doing,” he said in an interview.

The board, which will be represented by the Mississippi Attorney General’s office, has not yet issued a formal response to the lawsuit.

The vagueness of the Supreme Court’s decision opened the door for further legal challenges, according to Joshua Prober, senior vice president and general counsel for the American Osteopathic Association (AOA). The high court’s decision found North Carolina’s model for state licensing board regulation did not provide for sufficient state oversight of a board made up of market competitors, but the ruling does not provide clear guidance on what’s expected from state governments in structuring state licensing boards, he said.

“Instead, it said its inquiry would be ‘flexible and context dependent,’ which appears to invite challenges to structures used in other states,” he said. “Because antitrust litigation provides that a successful plaintiff can recover treble damages, there can be a generous payoff for a successful challenge.”

[email protected]

On Twitter @legal_med

The conflict between physicians and nonphysicians over how scope of practice should be regulated is heating up as a new antitrust challenge pits a medical board against a pain clinic.

The owners of Axcess Medical Clinic Inc. are suing the Mississippi State Board of Medical Licensure over a rule that requires pain clinics be owned by a hospital or licensed physician. The clinic claims the rule is anticompetitive and forced it to close, according to a lawsuit filed April 24 in U.S. District Court for the Southern District of Mississippi.

©belchonock/thinkstockphotos.com

The lawsuit follows a February decision by the U.S. Supreme Court against a local dental board that attempted to stop nonprofessionals from providing teeth-whitening services. The Justices ruled the dental board had violated federal antitrust regulations because the board was not adequately supervised by the state. At the time, physician leaders worried the high court ruling could generate further lawsuits and alter state medical boards’ ability to regulate scope of practice.

The Mississippi case stems from a 2011 board rule that requires pain management clinics to be owned or operated by a hospital or licensed physician. The rule also requires that pain management clinics register with the board before doing business. Then-owner of Axcess Medical Clinic, Kenneth Charles Knight, requested that the clinic be grandfathered against complying with the rule because it opened in 2010, according to court records. The lawsuit claims the board failed to address the request, and Mr. Knight was forced to sell his ownership to a physician to salvage his investment. The physician later rescinded the purchase and the shares reverted back to Mr. Knight.

In 2012, Mr. Knight divested his majority ownership to family physician Dr. Fitzhugh L. Neal Jr., according to court documents. The board approved the clinic’s registration, but later requested more information about the physician’s proof of ownership. According to the lawsuit, the board found the physician was practicing pain management without proper qualifications and did not renew its registration. The clinic temporarily closed, but reopened a month later with a new registration, court documents state. In 2013, the licensure board issued new education and certification requirements for physicians to practice pain management. The requirements forced Axcess Medical Clinic to permanently close, the lawsuit states.

Plaintiffs Mr. Knight and Dr. Neal claim the board violated state and federal antitrust regulations by engaging in anticompetitive activities that deprived patients of choice. The suit also alleges that the board is made up of market participants who are not adequately supervised by the state.

An attorney for Axcess Medical Clinic said he could not provide timely comment on the case.

Dr. H. Vann Craig, executive director for the Mississippi State Board of Medical Licensure declined to comment on details of the litigation, but defended the board’s general practices. He noted that he is not aware of any Federal Trade Commission interest in the case.

“Our process is we try to deal with physicians and make sure they’re qualified to be doing what they are doing,” he said in an interview.

The board, which will be represented by the Mississippi Attorney General’s office, has not yet issued a formal response to the lawsuit.

The vagueness of the Supreme Court’s decision opened the door for further legal challenges, according to Joshua Prober, senior vice president and general counsel for the American Osteopathic Association (AOA). The high court’s decision found North Carolina’s model for state licensing board regulation did not provide for sufficient state oversight of a board made up of market competitors, but the ruling does not provide clear guidance on what’s expected from state governments in structuring state licensing boards, he said.

“Instead, it said its inquiry would be ‘flexible and context dependent,’ which appears to invite challenges to structures used in other states,” he said. “Because antitrust litigation provides that a successful plaintiff can recover treble damages, there can be a generous payoff for a successful challenge.”

[email protected]

On Twitter @legal_med