Monday, January 16, 2017

What about the "BAD ACTORS?"

In December, WorkCompCentral announced California's implementation of a law signed in September 2016, in DWC to Start Kicking Rogue Medical Providers Out of Comp in February. That headline caught my attention because of the National Conversation on workers' compensation that began last May and has blossomed since in three settings: Dallas, Orlando and New Orleans. 

One of the critical points raised in the National Conversation has been the perception that there are "bad actors" in the world of workers' compensation. Attendees have stated that they exist, the industry knows who they are, regulators know who they are, and "nothing ever happens" to them. One attendee tied this perception to another common workers' compensation criticism, regulation. The attendee perceives that regulators respond to "bad actors" by implementing new, broad, expensive, and bothersome rules and regulations that burden all of workers' compensation for the sins of the "bad actors." 

More confusing, the perception is that the regulators fairly uniformly fail to enforce their new regulations or police the "bad actors" nonetheless. The process is perceived as pass regulations, fail to enforce them, witness transgressions, lament injuries and damage, and start over with pass more regulations. The industry perceives that only regulations affecting insurance carriers are enforced, and that the "bad actors" are rarely addressed. 

Under California's new law, "health care providers who have been convicted of billing fraud and other criminal acts relating to the practice of medicine could be kicked out of California’s workers’ compensation system by February." That sentence bears consideration and contemplation. Stated otherwise, California is saying "criminal convicts could be punished." National Conversation attendees might ask why the tenor of this is permissive ("could") instead of mandatory ("shall"). In what context should criminal convicts continue to participate in workers' compensation medical care? For that matter, why should they participate in any medical care in California? That begs the broader question, why let them participate anywhere?

California reports that "there are also thousands of providers who have been prohibited from participating in California’s Medicare system." These may also "meet the criteria for mandatory suspension under" the new California law. The list of providers suspended from California Medicate (Medi-Cal) exceeds "16,000 providers." Is anyone reading this and saying "that doesn't seem like very many?) That is equivalent to the approximate entire population of El Segundo, California! For you Floridians, that is more than the approximate population of Maitland City, Florida. 

This perhaps illustrates the sentiment of the National Conversation attendees. It appears California knows who some 16,000 "bad actors" are. It also appears that since 1972 California has been suspending medical providers from treating the old through Medicare, but left them free to continue providing care to California workers. 

The MediCal list is here. It includes providers: (1) convicted of a felony; (2) convicted of a misdemeanor involving fraud, abuse of the Medi-Cal program or any patient; (3) suspended from the federal Medicare or Medicaid programs for any reason; (4) lost or surrendered a license, certificate, or approval to provide health care; or (5) breached a contractual agreement with the Department that explicitly specifies inclusion on this list as a consequence of the breach. These appear to be the "bad actors" or at least they arguably belong in that category, perhaps with others. But this year, 44 years after the list was started, they may no longer be eligible to treat injured workers. 

Despite several Internet searches, no similar listing specific to Florida was located. 

California's move to restrict providers is dissimilar to the federal government's trend regarding the "bad actors." Medicare acknowledges that there are providers who have been disqualified from receiving reimbursement for services, based on their own behavior. But Bloomberg reported in 2014 that Doctors Banned From Medicare May Get an Easier Shot at a Second Chance. Medicare is striving to bring back the "bad actors" who have (1) acted inappropriately, (2) been caught, and (3) been stricken from the system. 

Bloomberg says that Medicare "pays millions of dollars to doctors whose licenses were revoked." Medical licensing is a function of states, and so a doctor might lose a license in one state only to be licensed by another. The article cites an example of a "doctor convicted of embezzlement in Ohio and barred permanently from practicing medicine there was granted a license in New Mexico." The failure or refusal of New Mexico to investigate this physician, or to care, resulted in the embezzler reacquiring access to Medicare patients and money. The embezzler physician reportedly "collected $660,000 from Medicare in 2012." 

In its recent effort, California has targeted the "bad actors" and limited the bureaucratic discretion in dealing with them. According to WorkCompCentral, the "division must suspend any person whose license, certificate or approval to provide health care has been revoked." and, it must "suspend any person who or entity that has been suspended from Medicare or Medicaid due to fraud or abuse." This language ("must") seems to limit discretion, and might lead to some consistency. 

The phraseology also suggests that a provider having been forgiven by Medicare for past fraud or abuse might still be suspended ("that has been suspended," not "that is suspended"). Is there some valid reason for letting the bad actors back in? A great line from a recent Star Wars installment, The Force Awakens, comes from the villain Kylo Ren. When asked where the "others are," he responds "do you mean the murderers, traitors and thieves you call friends?" When referring to the "bad actors," might one similarly question "do you mean the frauds, embezzlers and thieves you call doctors?"

Some believe that it is unfair to permanently punish providers for events in the distant past, or who "made a mistake." WorkCompCentral quotes one medical society director of government relations as believing that it is inappropriate to kick a doctor out of the workers' compensation system who has been "convicted, punished and then returned to practicing medicine." Thus, there appears to be at least some sentiment for ignoring certain fraud and abuse depending on circumstances. There is some sentiment that not all frauds, embezzlers and thieves are necessarily bad people. 

There are often discussions about federal intervention in workers' compensation. The vast majority of expositions on the topic that I have witnessed do not favor federalization. However, there are those who suggest that there is room for federal regulation in support of workers' compensation and medical care generally. Perhaps medical care reimbursement is an area in which such supporting regulation could be efficacious?

Perhaps federal law should mandate:
(1) any provider convicted of violating the controlled substance act in any jurisdiction shall remain forever ineligible to prescribe any controlled substance in any U.S. jurisdiction.
(2) any provider ineligible for reimbursement for any medical program in any state as a result of criminal conviction, involuntary relinquishment of eligibility, or voluntary relinquishment pending investigation or discipline, shall be forever ineligible for reimbursement through any federal reimbursement program or any state program that utilizes or relies upon any federal funding of any description (medical or otherwise).
(3) Any provider that ceases licensure due to criminal conviction, involuntary relinquishment of license, or voluntary relinquishment of licence pending investigation or discipline, shall be reported to the (newly created) Federal Reimbursement Approval Unauthorized Database (FRAUD).

It may be impractical to catch all the "bad actors." It may be impossible to stop all of the fraud and criminal activity. But, perhaps there is room for some common-sense effort to deal with the "bad actors" that we do know about. 

While some may lament efforts, and instead feel sorry for the frauds and criminals that might have to find new vocations, perhaps strong efforts against the "bad actors" we know might deter and disincline bad behavior by others? Having invested resources in catching and disciplining the "frauds, embezzlers and thieves you call doctors?" perhaps their departure from our midst needs to be permanent?

It will be interesting to watch California's efforts under their new law. How many of those on the Medicare list will actually be expunged from eligibility regarding injured workers this February?

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