CMS Announced Proposed Rule to Possibly Ban Providers Labeled as Harmful Medicare Part D Prescribers

Monday, January 13, 2014
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law and Michael L. Smith, R.R.T., J.D., Board Certified by The Florida Bar in Health Law

The Centers for Medicare and Medicaid Services (CMS) is proposing to exclude providers from Medicare if the government determines a pattern of abusive prescribing practices of Medicare Part D drugs. The agency also wants to prohibit doctors who are not enrolled in Medicare from prescribing drugs that are reimbursed by Part D. CMS described these efforts on January 6, 2014, in a proposed rule. CMS will take public comments on the rule until March 7, 2014.

Click here to read the proposed rule.

The announcement on the rule allegedly came following a series of articles by ProPublica exploring CMS’s lax oversight of the Medicare Part D program. ProPublica is an independent, non-profit newsroom that produces investigative journalism in the public interest.


Details of the Proposed Rule.


According to CMS, the proposed rule seeks to use new tools to identify and fight problematic prescribers and pharmacies. Some of the proposed key fraud and abuse provisions include:

-  Requiring prescribers of Part D drugs to enroll in Medicare and revocation of such enrollment in cases of abusive prescribing practices and patterns;
-  Allowing CMS to request and collect information directly from pharmacy benefit managers, pharmacies and other entities that contract with Part D sponsors to better detect fraud; and
-  Improving CMS’s ability to collect identified Medicare overpayments from Medicare Advantage (MA) plans and Part D sponsors.

According to a Modern Healthcare article, these efforts could save the government $1.3 billion over five years, and help curb the abuse of prescription drugs that Medicare pays for. Click here to read the entire Modern Healthcare article.


What This Means for Health Care Providers.


This proposed rule would mean that CMS would have the authority to kick physicians and other providers accused of over prescribing out of the Medicare program.  It could also take such actions if providers’ licenses have been suspended or revoked by state regulatory boards or restricted from prescribing painkillers and other controlled substances.

Exclusion from the Medicare program can have devastating and far-reaching effects on a health care provider. To learn more, click here to read my previous blog.

The agency will also tighten a loophole that allows doctors to prescribe to patients in the Medicare Part D drug program, even when the physician is not officially enrolled in Medicare. Under the proposed new rules, doctors and other providers will have to enroll as Medicare providers if they want to write prescriptions to Part D beneficiaries.

The new rules may require some patients to change providers, or force doctors to apply to be part of Medicare.


Prescription Fraud and Abuse Big Issue in Part D.

According to ProPublica, the organization addressed CMS’s alleged failings in an investigation last year. The investigation stated that Medicare’s failure to keep watch over Part D has enabled doctors to prescribe massive quantities of inappropriate medications, has wasted billions on expensive drugs and has exposed the program to rampant fraud. When ProPublica looked at the highest prescribers of narcotics in Part D, it found many of those prescribers had faced criminal complaints, action by their state medical board or other accusations of misconduct.

Click here to read more from ProPublica.

In response to ProPublica, Jonathan Blum, the CMS Principle Deputy Administrator, wrote a blog stating that the agency is serous about fighting fraud and abuse in Medicare Part D. To read that blog, click here.


More Scrutiny to Come.

What this means for physicians, medical groups, pharmacists, pharmacies, nurse practitioners, physician assistants and other licensed health professionals is even stricter scrutiny from more government agencies and even more audits, audits that can have dangerous consequences. Medicare, RAC and ZPIC auditors will be scrutinizing prescribing and prescription practices, especially for narcotics and pain medications. It can be expected that this information will then be shared with state agencies, local law enforcement, the Drug Enforcement Administration (DEA), and others. More complaints, investigations, administrative actions and criminal prosecutions are bound to occur.


Contact Attorneys Experienced in Defending Against Action to Exclude an Individual or Business from the Medicare Program.

The attorneys of The Health Law Firm have experience in dealing with RAC audits, ZPIC audits, pharmacy audits, DOH investigations, DEA investigations, the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), and defending against action to exclude an individual or business entity from the Medicare Program, in administrative hearings on this type of action, in submitting applications requesting reinstatement to the Medicare Program after exclusion, and removal from the List of Excluded Individuals and Entities (LEIE).

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


Comments?

What do you think about the new proposed rule? How could it affect you? Please leave any thoughtful comments below.


Sources:

Weber, Tracy and Ornstein, Charles. “In a Major Shift, Medicare Wants Power to Ban Harmful Prescribers.” ProPublica. (January 6, 2014). From: http://www.propublica.org/article/in-a-major-shift-medicare-wants-power-to-ban-harmful-prescribers

Blum, Jonathan. “Combating Fraud and Abuse in the Medicare Prescription Drug Program.” CMS. (January 6, 2014). From: http://blog.cms.gov/2014/01/06/combating-fraud-and-abuse-in-the-medicare-prescription-drug-program/

Dickson, Virgil. “CMS Seeks Part D, Advantage Changes to Save $1.3B, Cube Abuses.” Modern Healthcare. (January 7, 2013). From: http://www.modernhealthcare.com/article/20140107/NEWS/301079952


About the Authors: 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.

Michael L. Smith, R.R.T., J.D., is Board Certified by The Florida Bar in Health Law. He is an attorney with 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.


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