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Emergency Medicine News:
doi: 10.1097/01.EEM.0000450842.11541.63
At Your Defense

At Your Defense: Are You on Medicare's Blacklist?

Reyes, Carlo MD, JD

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Dr. Reyesis the vice chief of staff and the assistant medical director of emergency medicine at Los Robles Hospital and Medical Center in Thousand Oaks, CA. He is also a clinical professor of pediatrics and emergency medicine at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA, and a founder and the CEO ofhealthelaw.com, which provides medical-legal education for doctors starting in medical school, through residency training, and beyond.

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Medicare made physician reimbursement data available to the public for the first time on April 9, allowing anyone to look up information such as services furnished, charges sought, and payment collected for the highest Medicare earners in 2012, an amount that totaled $77 billion to 880,000 physicians. This is a departure from prior policy by the Department of Health and Human Services, which under a prior federal injunction had barred disclosure of physician reimbursement since 1979. A 2013 federal district court ruling, however, said physician reimbursement may now be released by the Centers for Medicare and Medicaid Services on a case-by-case basis under the Freedom of Information Act.

Why did HHS change its policy on making physician reimbursement available to the public? The department, in a letter to James Madara, MD, the vice president and CEO of the American Medical Association, reasoned that the change was intended “to identify and report on a number of instances of Medicare fraud, waste, and abuse.”

Certainly, rooting out health care fraud is vital to maintaining the viability of Medicare. Regrettably, Health and Human Services decided to use blunt dissection rather than applying surgical precision to root out fraud and abuse in reimbursement by indiscriminately disclosing physician reimbursement to the public, insinuating that the physicians listed are highly suspicious, if not outright guilty, of fraud. This public listing makes each physician appear guilty until proven innocent, and breaches a physician's right to privacy. Branding physicians as guilty in the court of public opinion ignores a physician's right to due process, leaving us without an opportunity for defense and ultimately without a voice in health care.

Several problems arise with the publication of a Medicare blacklist, first among them that the list may inaccurately represent physician salary derived from Medicare reimbursement. The cost and utilization of physician services may be overestimated for a particular physician because of many factors, such as the cost of overhead, cost of expensive medications reimbursable under Medicare, payment to other providers within a physician group, and supervision of medical residents and non-physician providers.

The “balancing test” used by HHS to determine whether the reimbursement of a particular physician shall be publicly disclosed is problematic. The new policy will allow HHS to “weigh the balance between the privacy interest between the individual physicians and the public interest in disclosure of such information.” (“Modified Policy on Freedom of Information Act Disclosure of Amounts Paid to Individual Physicians under the Medicare Program,” Centers for Medicare & Medicaid Services, HHS, Jan. 17, 2014; http://1.usa.gov/1iy4cBG.)

But if the purpose of the list is to identify and report on instances of fraud and abuse, then any physician with high reimbursement will always tilt the balance in favor of public disclosure. A physician with high reimbursement may have a reasonable explanation that may escape CMS analysis if the physician is not given the opportunity to defend. This brings up a third, fundamental problem: due process. Is a physician given notice and an opportunity to comment prior to the publication of private information?

The Medicare blacklist can have far-reaching negative consequences. Instead of devoting resources to investigating suspicious high Medicare earners, publicly vilifying physicians through a blacklist may cause irreparable harm to the patient-physician relationship by damaging the trust relationship between patients and the field of medicine, which I characterized previously as the “medicine-patient relationship.” (EMN 2012;34[10]:6;http://bit.ly/1hvr9SI.)

The intended consequence of the blacklist is that physicians should take special care in submitting Medicare claims. The False Claims Act makes it a crime for a person to submit a false claim to the government, which would result in $5,500 to $11,000 fine, plus triple damages per claim. The power of this statute lies in the qui tam provision, where a whistleblower can provide the government with insider investigative power to fuel litigation.

The impact on emergency medicine should be apparent. Ordering tests and procedures, requesting consultations, and admitting patients must meet medical necessity or be subject to scrutiny under the False Claims Act. The Department of Justice earlier this year, for example, intervened in eight False Claims Act lawsuits against Health Management Associates. (“DOJ Joins Whistleblower Suits against HMA,” EMN 2014;36[3]:1; http://bit.ly/1hz79Ap.) One of the lawsuits alleged that HMA paid emergency physicians kickbacks to comply with a program that induced physicians to admit more patients to the hospital or risk being removed from the work schedule.

The current approach to ferreting out fraud and abuse in health care will create more distrust by patients of the provider workforce. This will make our field less attractive, and may ultimately lead to a greater physician shortage. What needs to be acknowledged is that physician privacy is vitally important to well-being and standing in the health care community, and breach of privacy can negatively affect the patient-physician relationship. Due process prior to public listing must be afforded each physician.

We members of the health care community should take an active role in solving the problem of fraud and abuse. Akin to the ongoing problem of peer review that we must improve to monitor standards of care, our professional organizations must also provide guidance in compliance and setting standards to prevent fraud and abuse.

Physicians also need to understand the regulatory laws that govern the practice of medicine better, including the False Claims Act, the Stark Law, the Anti-Kickback statutes, HIPAA, and EMTALA. Physicians can no longer claim ignorance as an excuse, and medical educators should provide young physicians the opportunity to learn the regulatory aspects of medicine during medical school and residency.

Access the linksin EMN by reading this on our website or in our free iPad app, both available atwww.EM-News.com. Comments?Write to us atemn@lww.com.

Wolters Kluwer Health | Lippincott Williams & Wilkins

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