Be Sure To Review ABIM's New List of Overused and Unnecessary Medical Tests and Procedures

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

This year, seventeen (17) medical specialty societies added their names and recommendations to a list of medical procedures that are overused and often unnecessary. This updated list was released in February 2013, and includes ninety (90) new tests and procedures. The first version of the list was released in April 2012, with recommendations from nine (9) leading medical groups. It was created as part of the American Board of Internal Medicine (ABIM) Foundation’s Choosing Wisely campaign to help reduce healthcare spending and improve patient care.

An article I previously wrote on the first list was published in Medical Economics. Click here to read the entire article.


List Designed to Promote Education.
In 2011, the ABIM found that the United States spends more than $2.5 million a year on healthcare, which is more than $8,000 a person. Studies have suggested that the high cost of healthcare in the U.S. is driven largely by the price of tests and procedures.



The motive behind this list is to promote an educational dialogue between physicians and patients. These medical societies are urging patients to actively question their doctors when listed tests and procedures are recommended. It’s believed that reducing the amount of unnecessary tests and procedures will help decrease medical spending and medical costs.


Patient Protection.
This situation also may have the side effect of promoting additional litigation against doctors, healthcare clinics, and hospitals that provide the unnecessary tests and procedures. Many states have laws that prohibit unnecessary tests and procedures and sanction those who provide them. For instance, Section 766.111, Florida Statutes, which was enacted in 1985, states:

Engaging in unnecessary diagnostic testing; penalties:

1. No healthcare provider licensed pursuant to chapter 458 [medical doctors], chapter 459 [osteopathic physicians], chapter 460 [chiropractic physician], chapter 461 [podiatrist], or chapter 466 [dentist], shall order, procure, provide, or administer unnecessary diagnostic tests, which are not reasonably calculated to assist the healthcare provider in arriving at a diagnosis and treatment of a patient's condition.
2. A violation of this section shall be grounds for disciplinary action...
3. Any person who prevails in a suit brought against a healthcare provider predicated upon a violation of this section shall recover reasonable attorney's fees and costs.

This Florida law not only provides a private cause of action by a patient against a health provider who orders or furnishes such "unnecessary" diagnostic tests, but unlike other tort and medical malpractice statutes, it allows the prevailing party in such a case to recover attorney's fees and costs. This law may by itself promote litigation in the face of the lists of tests from the specialty groups.


Some Procedures and Tests That are Now Considered Unnecessary.
Some of the items the societies suggest avoiding include:

1. American Academy of Pediatrics (AAP): Antibiotics for apparent viral respiratory illnesses, such as sinusitis or bronchitis;



2. American Academy of Neurology (AAN): Electroencephalography for headaches;



3. American Academy of Ophthalmology (AAO): Antibiotics for pink eye;



4. American Society for Clinical Pathology (ASCP): Population-based screening for vitamin D deficiency;



5.  American Urological Association (AUA): Routine bone scans in men with a low risk of prostate cancer;



6 Society of Nuclear Medicine of Molecular Imaging (SNMMI): PET/CT scans for cancer screening in healthy individuals.

A number of recommendations were made by multiple groups.

1. The American Academy of Family Physicians (AAFP) and the American College of Obstetricians and Gynecologists (ACOG): both urged against scheduling elective labor inducements or cesarean deliveries before 39 weeks. This action is associated with an increased risk of learning disabilities, respiratory issues and other possible problems in infants.



2. The American Academy of Hospice and Palliative Medicine (AAHPM) and the American Geriatrics Society (AGS): both recommended against percutaneous feeding tubes in advanced dementia patients because studies have shown the tubes don’t result in better patient outcomes. Oral feeding is recommended instead.

The ABIM hopes to release a third list later in 2013, which will include thirteen (13) more healthcare societies.
A full list of the current recommendations can be found on the “Choosing Wisely” website.


Expect to See  More False Claims and Qui Tam Cases.
I believe that with this updated list will come more qui tam or “whistleblower” and false claims cases.
Qui tam cases have been brought under the federal False Claims Act for the recovery of Medicare payments from hospitals, physicians, medical groups, nursing homes, insurance companies, diagnostic testing facilities, clinical laboratories, radiology facilities and many other types of healthcare providers. These cases allege that a false claim was submitted to the government. If the test or procedure was unnecessary, then it seems almost axiomatic that a claim for it is false. The plaintiff bringing such cases receives a percentage of the recovery, which often amounts to millions of dollars in successful cases.

Most states now have similar false claims act or qui tam laws providing similar causes of action and recoveries to individual plaintiffs in the case of state Medicaid payments as well.

Because medical necessity is a requirement for practically every Medicare and Medicaid service, as well as most services paid by private health insurers, the lists provided by the specialty may very well be exhibit one in future lawsuits.


A Lawyer's Perspective.
I do not disagree with, and am not critical of, the specialties providing this valuable information to the public. If anything, such information makes for a more educated patient populace and provider group and serves to eliminate tests and procedures that have no proven medical efficacy.

A doctor should have the knowledge, skill, training, and confidence to know when such tests and procedures are not warranted. If a physician persists in ordering these tests solely for the means of increasing profits, he or she should be penalized. If not, the physician should be able to justify them.


Contact Experienced Health Law Attorneys.
 The Health Law Firm routinely represents pharmacists, pharmacies, physicians, nurses and other health providers in investigations, regulatory matters, licensing issues, litigation, inspections and audits involving the Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), Department of Health (DOH) and other law enforcement agencies. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys.

 

 To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


Sound off.
Have you reviewed this new list of tests and procedures that have been deemed unnecessary? As a healthcare professional, what do you think of the list? How important is it for patients to be educated on their options for medical care? Please leave any thoughtful comments below.


Sources:
Levey, Noam. “Doctors List Overused Medical Treatments.” Lose Angeles Times. (February 20, 2013). From: http://www.latimes.com/health/la-na-medical-procedures-20130221,0,6234009.story
Indest III, George. “Beware Legal Ramifications of Unnecessary Tests.” Medical Economics. (July 25, 2013). From: http://medicaleconomics.modernmedicine.com/news/beware-legal-ramifications-unnecessary-tests
Lee, Jamie. “Choosing Wisely Campaign Expands List of Questionable Tests, Procedures.” Modern Healthcare. (February 231, 2013). From: http://bit.ly/YLFVtu
Pittman, David. “17 Doc Groups Add to ‘Overused’ Test List.” MedPage Today. (February 21, 2013). From: http://bit.ly/VAW2g6


About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

The Health Law Firm" is a registered fictitious business name of George F. Indest III, P.A. - The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Physicians Feel Pressured to Enforce Questionable Practices in Hospitals

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Doctors and hospitals around the country seem to be butting heads. In the past month, an article in The New York Times and a segment on the television “magazine” show 60 Minutes shed light on some questionable practices being enforced by hospitals on physicians working for them.
I previously wrote a blog on this structural shift in the practice of medicine. Click here to read that blog.
The effects of this trend are examined in these two news stories. Doctors and former employees from a number of hospitals around the country were interviewed and all seem to be dealing with the same issues. The biggest concerns addressed were: pressure to order unnecessary tests, admitting patients to fill hospital quotas and drive hospital profits, and the feeling of being controlled by hospital executives and administrators instead of practicing effective medicine.


Filling Beds to Increase Profits.

On December 2, 2012, 60 Minutes aired an investigative segment on one of the largest for-profit hospital chains in the country. Former employees and physicians alleged this hospital system thrived by buying urban-area hospitals and turning them into profit centers by filing empty beds from emergency rooms. A former emergency medicine doctor stated that the hospital in which he worked required an admission rate of twenty percent (20%) for patients seen in the ER and fifty percent (50%) for patients who were 65 years old and older (most of whom are Medicare patients) seen in the ER.
A former hospital system employee interviewed by 60 Minutes claimed he was in charge of auditing the hospital chain in question. He stated that he was convinced that doctors were under an extraordinary amount of pressure to fill hospital beds. He stated that he personally audited hospitals in Texas, Florida and Oklahoma, and concluded there were hundreds of thousands of dollars submitted to Medicare and Medicaid for hospital stays that did not meet standards for reimbursement, including medical necessity.
Doctors interviewed for The New York Times article had similar stories. They stated in interviews that hospital administrators created quotas for how many patients should be admitted, because more admissions allegedly meant more money. Doctors who met or exceeded quotas were rewarded with increased compensation, while doctors who did not felt in danger of losing their jobs.
Click here to read the entire New York times article.


Legal Consequences of Ordering Unnecessary Tests.
The New York Times article looked at a number of lawsuits filed by former employees who allege the hospitals they worked for compensated doctors for ordering more tests than necessary.
The Department of Justice (DOJ) recently settled with a hospital group in Joplin, Missouri. According to the DOJ press release, the hospital system had to pay more than $9.3 million for rewarding doctors partly based on how many tests they ordered. This is in direct violation of the Stark Law and the False Claims Act.
Click here to read the entire press release from the DOJ.
I recently wrote an article for Medical Economics on the legal ramifications of ordering unnecessary tests. To read that article, click here.
If you want to know more on the Stark Law, click here.

Physicians Feel Controlled.
Doctors also stated they felt controlled by hospital executives. This was due, in part, to a corporate wide computer software system that was customized to automatically order an extensive battery of tests, some unnecessary, as soon as a patient walked into the hospital. It’s also stated that the software would prompt a physician to reconsider when he or she decided to send an emergency room patient home.
Most doctors interviewed were upset that the program also generated reports that evaluated each doctor’s performance and productivity.
To watch the segment from 60 Minutes, click here.
Hospitals Don't Agree with the Physicians' Stories.
The hospital system in question by 60 Minutes maintains that these allegations are not correct. The executive vice president said that as a whole admission rates haven’t changed in four years and are near or below industry averages. The hospital systems believe that by consolidating they are embracing the new model of health care and state patient care comes first.


Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers. At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.
The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


Comments?
Do you think there are constant battles between doctors and hospitals? As a health professional, have you experienced the pressure to admit patients, order unnecessary tests or refer a patient inside your network? Please leave any thoughtful comments below.


Sources:
Creswell, Julie and Abelson, Reed. “A Hospital War Reflects a Bind of Doctors in the U.S.” The New York Times. (November 30, 2012). From: http://www.nytimes.com/2012/12/01/business/a-hospital-war-reflects-a-tightening-bind-for-doctors-nationwide.html?pagewanted=all

Kroft, Steve. “Hospitals: The Cost of Admission.” 60 Minutes. (December 2, 2012). From: http://www.cbsnews.com/video/watch/?id=50136261n

Department of Justice. “Missouri Hospital System Agrees to Pay $9.3 Million to Resolve False Claims Act and Stark Law Violations.” DOJ. (November 5, 2012). From: http://www.justice.gov/printf/PrintOut3.jsp


About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

"The Health Law Firm" is a registered fictitious business name of George F. Indest III, P.A. - The Health Law Firm, a Florida professional service corporation, since 1999.

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Whistleblower lawsuit against Adventist Health System

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A whistleblower lawsuit based on information from a former Florida Hospital Orlando billing employee and a former staff physician alleges that seven of Adventist’s Florida hospitals overbilled the federal government between 1995 and 2009, resulting in tens of millions of dollars in false or padded medical claims, according to an article in the Orlando Sentinel and other sources.

To read the entire False Claims Act complaint filed, click here.

Alleged Details in the Case Against Adventist Health System.
The suit claims that seven Adventist Florida hospitals allegedly used improper coding to overbill Medicare, Medicaid and Tricare. In addition, the lawsuit alleges the hospitals also overbilled for a drug used in MRI scans and billed for computer analyses that were never performed.

The article states that the plaintiffs are a bill-coding and compliance officer, and a radiologist that were either employed or affiliated with Florida Hospital Orlando between 1995 and 2009. They allege the discrepancies occurred during those years. The lawsuit was filed in July 2010, according to the Orlando Sentinel.

Hospitals that allegedly partook in the overbilling include: Florida Hospital Orlando, Florida Hospital Altamonte, Florida Hospital East Orlando, Florida Hospital Apopka, Florida Hospital Celebration Health, Florida Hospital Kissimmee and Winter Park Memorial Hospital.

The U. S. district court judge has set the trial in this case for December 2013.

Click here to read the Orlando Sentinel article.

Total Exposure Could Exceed $100 Million.
If the health system is found liable for the false claims it would be responsible for repaying the excess money received, for paying civil penalties of $5,500 to $11,000 per false claim, and damages.

Under the False Claims Act, Whistleblowers Can Come Out on Top.
Whistleblowers stand to gain substantial amounts, sometimes as much as thirty percent (30%), of the award under the False Claims Act (31 U.S.C. Sect. 3730). Such awards, often reaching into millions of dollars, encourage employees to come forward and report fraud.

You can learn more on the False Claims Act on the Department of Justice (DOJ) website.

Contact Health Law Attorneys Experienced with Medicaid and Medicare Qui Tam or Whistleblower Cases.

In addition to our other experience in Medicare, Medicaid and Tricare cases, attorneys with The Health Law Firm also represent health care professionals and health facilities in qui tam or whistleblowers cases. We have developed relationships with recognized experts in health care accounting, health care financing, utilization review, medical review, filling, coding, and other services that assist us in such matters.

To learn more on our experience with Medicaid and Medicare quit tam or whistleblower cases, visit our website.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:
Jameson, Marni. “Whistleblower Lawsuit Alleges Florida Hospital Filled Millions in False Claims.” Orlando Sentinel. (August 8, 2012). From: http://articles.orlandosentinel.com/2012-08-08/health/os-whistleblower-lawsuit-florida-hospital-20120808_1_adventist-health-suit-claims-celebration-health/2

Gamble, Molly. “Whistleblower Suit Alleges Florida Adventist Hospitals Overbilled Tens of Millions.” Becker’s Hospitals Review. (August 9, 2012). From: http://www.beckershospitalreview.com/legal-regulatory-issues/whistleblower-suit-alleges-florida-adventist-hospitals-overbilled-tens-of-millions.html

Flagler Live and Kaiser Health News. “Florida Hospital Flagler Spared Sister Hospitals’ Fraud Lawsuit and Medicare Penalties.” Flagler Live. (August 13, 2012). From: http://flaglerlive.com/42723/adventist-lawsuit-medicare/
Amanda Dittman and Charlotte Elenberger, M.D. v. Adventist Health Systems/Sunbelt, Inc. No. 6:10-cv-01062-JA-GJK (July 15, 2010), available at: http://flaglerlive.com/wp-content/uploads/whistleblower-lawsuit-adventist.pdf

Justice.Gov. “The False Claims Act.” Department of Justice. From: http://www.justice.gov/civil/docs_forms/C-FRAUDS_FCA_Primer.pdf

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

 

"The Health Law Firm" is a registered fictitious business name of George F. Indest III, P.A. - The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Florida Participates in Largest Healthcare Fraud Settlement in U.S. History

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

GlaxoSmithKline (GSK), a prescription drug manufacturer, has agreed to pay $3 billion in fines to resolve healthcare fraud allegations in what has become largest healthcare fraud settlement in U.S. history. The settlement was announced by federal prosecutors on July 1, 2012, and in a press release from the Florida Attorney General on July 2, 2012.

Florida to Receive $56 Million In Settlement.

Florida will receive more than $56 million as part of the settlement with GSK. Florida Attorney General, Pam Bondi, announced the state's participation in the settlement on July 2, 2012.

Settlement Resolves List of Allegations Related to Healthcare Fraud.

The settlement resolves allegations that GSK:

• Marketed the depression drug Paxil for off-label uses, such as use by children and adolescents; 
• Marketed the depression drug Wellbutrin for off-label uses, such as for weight loss and treatment of sexual dysfunction, and at higher-than-approved dosages; 
• Marketed the asthma drug Advair for off-label uses, including first-line use for asthma;
• Marketed the seizure medication Lamictal for off-label uses, including bipolar depression, neuropathic pain, and various other psychiatric conditions; 
• Marketed the nausea drug Zofran for off-label uses, including pregnancy-related nausea; 
• Made false representations regarding the safety and efficacy of Paxil, Wellbutrin, Advair, Lamictal, Zofran, and the diabetes drug Avandia;
• Offered kickbacks to healthcare professionals to induce them to promote and prescribe certain prescription drugs; and
• Submitted incorrect pricing data for various prescription drugs, thereby underpaying rebates owed to Medicaid and other federal healthcare programs.

GSK to Plead Guilty to Criminal Charges.

As part of the settlement, GSK has agreed to plead guilty to criminal charges that it violated the federal Food, Drug, and Cosmetic Act (FDCA). Allegedly, GSK introduced Wellbutrin and Paxil into interstate commerce when the drugs contained labels that were not in accordance with their FDA approvals. Additionally, GSK allegedly failed to report certain clinical data regarding Avandia to the FDA.

Settlement Originated From Whistleblower Actions.

The settlement is based on four qui tam, or whistleblower, actions brought by individuals pursuant to state and federal false claims. To view the federal False Claims Act, click here. A National Association of Medicaid Fraud Control Units team, along with several other federal agencies, investigated the matter and conducted settlement negotiations with the defendants. Florida’s civil investigation was handled by the Attorney General’s Complex Civil Enforcement Bureau, which is part of the Medicaid Fraud Control Unit.

Contact Health Law Attorneys Experienced in Healthcare Fraud Cases.

The Health Law Firm represents physicians, medical practices, pharmacists, pharmacies, and other health providers in healthcare fraud cases, including investigations, regulatory matters, litigation, and audits involving government health programs (Medicare, Medicaid, TRICARE).

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.thehealthlawfirm.com/.

Sources Include:

Meale, Jenn. "Attorney General Bondi's Office Reaches Historic Healthcare Fraud Settlement." Florida Office of the Attorney General. (July 2, 2012). Press Release. From:
http://www.myfloridalegal.com/newsrel.nsf/newsreleases/E494FDADFF113AC885257A2F0068F790

Schmidt, Michael S. and Katie Thomas. "GlaxoSmithKline Agrees to Pay $3 Billion in Fraud Settlement." New York Times. (July 2, 2012). From:
http://www.nytimes.com/2012/07/03/business/glaxosmithkline-agrees-to-pay-3-billion-in-fraud-settlement.html?pagewanted=all

About the Author:  George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  http://www.thehealthlawfirm.com/  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.