Friday, October 19, 2012

Who do You Trust?

The news today includes two stories about physicians. Each is disturbing.

From California, we learn that as many as 201 doctors are accused of writing prescriptions for patients that they either did not evaluate or who did not need the medication. Allegedly, a California based company recruited these physicians and paid a commission to them for prescribing certain topical analgesics to their patients. The company allegedly did the billing and collecting also. According to Workcompcentral.com, 40 of the doctors named in the complaint matched physician names and addresses listed by California in their Qualified Medical Evaluator database, another 37 others matched names only. The story reports that doctors in Florida, Arizona, and South Carolina are also implicated.

The Workcompcentral story reports that allegedly this pharmacy vendor and related companies control about 75,000 prescriptions, and billings of almost $20 million. For comparison, Melbourne, Florida has a census population of about 75,000 people. Those prescriptions may or may not be authentic, and each of those doctors deserves their day in court if they are eventually accused of wrongdoing.

In an unrelated story, a 61 year old Massachusetts surgeon named Kathaleen Porter will spend a year on house arrest, five years on probation, and has surrendered her medical licenses. Her offense? Prescribing an "alarming amount of Percocet to three patients between 2007 and 2009." Dr. Porter admitted she had not examined the patients for months, but that they would call her, tell her how many pills they wanted, and she would tape a prescription for them on her office door. One patient allegedly filled prescriptions at twelve different pharmacies, leading to some suspicion of a potential problem, and an investigation. This may be an example of where a mandatory prescription drug database would help; or this may be an example of how those who ignore laws will simply ignore the mandate to check the database.

The allegations in the first story may support various conclusions. It is possible that there is a massive misunderstanding, and no criminal or otherwise inappropriate behavior has occurred. The plea in the second story may reflect a recognition of criminal liability, or perhaps the doctor elected to accept this outcome because defending against it was too costly in time and or money. It is also possible that everyone involved in each story is guilty and should be prosecuted to the full extent possible under the law. Between these two possible extremes, it may be that there is criminal agency at work here, but that there are also some people involved whose greatest flaw is their trust, laziness or stupidity, none of which is criminal.

It is curious that educated people would make a cost-benefit analysis and decide that their investment in education is worth risking on a few dollars. According to Yale University Medical School, the average Med School tuition in 2010 was about $40,000 per year, and the average school debt of graduates varied by schools, but ranged from about $80,000 to almost $200,000. For reference, in 2010 the median price of a new home in the United States was just over $200,000. Having invested the time and effort to get the best grades in high school, four years of college, medical school, and residency, the financial and other costs of becoming a doctor would seem as obvious as they seem steep. The risk of loss of such a privilege over prescriptions like Dr. Porter's boggle the mind.

Why do the news outlets continue to tell us about physicians involved with "pill mills?" Why would a physician prescribe Percocet in "alarming amounts" to a patient they have not examined in months. Why would a physician put their trust, their license, their livelihood in the hands of a third party who will bill on their behalf and in effect use their good name? There is a hue and cry regarding needs for government regulation on topics like physician dispensing, prescription medication databases, and pill mills. But might we solve some of our own problems if we more regularly enforced the laws we have?

Dr. Porter, for whatever reason, plead guilty to stepping outside the lines. She may no longer practice medicine. Her practice and her good name are no more. Good. The doctors involved in the prescription outsourcing story may be innocent of wrongdoing, guilty of trusting too easily, or guilty. Let the system work and let the penalty fit whichever outcome is reached. 

It is often repeated that we can learn as much from a bad example as we can learn from a good one. From Dr. Porter I hope many will take a lesson to heart. From the California investigation, perhaps time will teach us all lessons about who and how far we trust.

Monday, October 8, 2012

The Florida AWD Website

I came across an interesting story recently in the Florida Current that described the two year journey of the Agency for Workforce Development in developing a new website. The article describes how consolidation into the new Department of Economic Opportunity necessitated an overhaul, "creating a content management system to manage jobless claims" and to integrate the web presence.

Perhaps this is not news, or perhaps it only interests those of us valiantly struggling with the challenges of keeping pace with the ever-changing world of technology. The article notes that "so far" this website redesign  has cost about three quarters of a million dollars. Coincidentally, it is that time of year and the OJCC is in the process of preparing to publish the statutorily mandated annual report to the legislature. That report will note between the OJCC deployment of e-filing in 2005, through the end of the last fiscal year (06.30.12), users have saved about $1,310,177 through use of the e-JCC platform and e-filing. I note this because to date, the OJCC has not spent an aggregate of one million dollars on the entire e-JCC platform. 

Coincidentally, the Florida Supreme Court is moving forward with electronic filing. In an opinion of June 21, 2012, the Court adopted rule amendments characterized as "a significant and important step toward our goal of a fully electronic court system."  The opinion reiterates the Court's 1996 conclusion that the "judicial branch was rapidly moving into the information age." The Court adopted electronic filing and electronic service, see SC11-399 and SC10-2101. 

For the last two years, we have discussed the next step in the development process of E-JCC, e-service. Deployment of this tool has been frustrated by vacillation in a plan to centralize state e-mail systems. There was a plan for such centralization, and we held-off deploying e-service in anticipation of our migration to a new e-mail platform. Last legislative session, that centralization plan was scrapped, and we learned that the OJCC would remain on the existing e-mail platform. Since that decision, we have arranged to upgrade our e-mail capability, both hardware and software, and strengthen the system that will be the foundation of e-service.

The implementation process now draws to a close. The OJCC is ready to deploy the e-service tool for which you have been waiting. The OJCC is not a court. The Office of the Judges of Compensation Claims ("OJCC") is not part of the Florida Judiciary which is created, defined and regulated by Article V. of the Florida Constitution.  Jones v. Chiles, 638 So.2d 48 (Fla.  1994); see also, Millinger v. Broward County Mental Health & Risk Mgmt., 672 So.2d 24, 27 (Fla. 1996).  The OJCC “is not a court of this State because it is neither the supreme court, a district court of appeal, a circuit court, nor a county court.” Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004). Furthermore, the Supreme Court concluded that it "has no authority under the Florida Constitution, nor has this Court ever had the constitutional authority to promulgate rules of practice and procedure for” the Office of Judges of Compensation Claims. Amendments, at 479. 

The Legislature historically delegated the authority for adopting procedural rules regarding workers’ compensation to the Florida Supreme Court, see, Fla. Stat. §440.29(3)(1993). Pursuant to that delegation of authority, the Court adopted procedural rules in 1979. In 1994 the Legislature mandated in Fla. Stat. §440.45(5)(1994) that the OJCC "promulgate" rules of procedure, to supplant and replace the procedural Rules adopted by the Supreme Court. In 2001, the Legislature mandated that the Office of the Judges of Compensation Claims to "adopt" such rules, and stated the Supreme Court Rules shall govern "until the rules adopted by the OJCC pursuant to this section become effective." Fla. Stat. §440.45(2001). On February 23, 2003, the OJCC did enact procedural rules, designated 60Q-6.101, et seq. The statutory mandate for the OJCC to adopt rules was recognized by the Supreme Court in declining to adopt amendments to its Rules of Worker's Compensation Procedure, and in repealing those rules in 2004 as an “unconstitutional encroachment on the power of the executive branch to adopt rules of procedure for its own agencies.” Amendments, at 479.

E-Service for the OJCC will not proceed down the path selected by the Supreme Court. Their choices and rules (the Rules of Judicial Administration) are logical and are designed to meet the needs of the vast assortment of parties and litigation which the Florida Courts service. The OJCC, however, has different needs and requirements. One of these is the methodology for leveraging the electronic paradigm to decrease litigation expense, specifically in the requirement of certified mailings. Therefore, practitioners will need to remain conscious of the differences between civil practice and workers' compensation. One will be the manner of email address maintenance. Another will be the "five days for mailing" differences. Each will be addressed specifically in coming posts. 

The new OJCC Rules will be published soon. Watch the OJCC website for details, or follow us on Twitter for instant updates as we continue to work to make this paradigm a reality for you.