What's Happening in Pain Management Prosecution? A Survey of Cases

Prescribers run afoul of the laws and regulations governing controlled substance prescribing in a couple of different ways but it often just boils down to documentation and a clear picture of the prescriber’s rationale for prescribing the controlled medication to a particular patient. A second failing is not really taking time to get to know the patient and look at their risk potentials that they present when designing the treatment plan. A third area that is often mentioned is the failure to follow up on activities and behaviors that might show that the patient is not really benefiting from the medication and/or should be referred to a specialist.

The Centers for Medicare and Medicare Services (CMS) now has the authority to use some factors and determine whether or not the prescribing that they’re reviewing of an enrolled provider is abusive or presents a threat to the safety of a Medicare beneficiary. That’s very broad, and the factors used could be considered vague. How is a provider supposed to know where those boundaries are if they’re enrolled in the Medicare program? I’m a bit concerned about how that’s going to be applied.

There are watchful steps that a clinician could take to protect themselves and the first thing that I would suggest is to read the new rule that CMS has out there and then have a dialogue with their healthcare attorney to see how that might apply to them. The second thing that they could do would be to see if they’re on the list of high prescribers and high volume utilizers that Medicare published earlier in 2014. A third consideration would be to make sure not to ignore any communication from CMS asking for additional information in medical records or additional clarification about the nature of the practice, although attorney consultation before sending it would be advisable. You don’t want to put yourself in a position where CMS could use this expanded authority against you.