such as a disgruntled employee accusing a physician of fraud with no credible evidence. TMA opposes health care fraud and supports a fair process
to prevent and detect actual fraud, says Darren Whitehurst, TMA’s vice president of advocacy. He says TMA will evaluate its options for asking the legislature to make sure the state conducts fair fraud and abuse investigations and gives appro- priate due process protections to physicians and other health care professionals accused of fraud, waste, or abuse. Addition- ally, TMA convened a Physicians Medicaid Congress at its fall conference in October to discuss ways to attract more physi- cians to participate in the program and to alleviate physicians’ fears of OIG.
RULES COULD DETER PARTICIPATION The onerous nature of the new OIG rules concerns Dr. Hol- comb, who says it is going to be “increasingly difficult to con- vince physicians to step up to the plate and see new Medicaid patients.” He pronounced the rules “just another nail in the coffin.”
He has reason to worry. According to TMA’s 2012 survey,
Texas physicians available to treat all new Medicaid patients plummeted from 42 percent in 2010 to 31 percent — an all- time low. To make matters worse, in 2010 and 2011, the state cut physicians’ already-meager Medicaid payment rates anoth- er 2 percent. Then, at the start of this year, the state cut pay- ments to doctors who care for the state’s poorest elderly and disabled patients (dual-eligible patients) another 20 percent. These cuts hit physician practices extremely hard, especially because Medicaid payments cover less than half of the average cost to provide services, Dr. Holcomb says. Without due process protections and other important changes in the draft rules, Dr. Holcomb wrote, “The pervasive fear among physicians that they will be incorrectly accused of fraud, waste, or abuse, or denied meaningful recourse in a fraud investigation will con- tinue to contribute to the de- cline in physician participation in Medicaid.” Kaufman pediatrician Charles Turner Lewis, MD, battled fraud allegations lev- ied against him by OIG from 2005 to 2008 and emerged victorious and with a renewed commitment to the Medicaid program. (See “OIG’s Hammer,” October 2007 Texas Medicine, pages 17–23.) Upon learning of the new program integrity rules, he said, “This is what happens when a governmental body gets to write its own set of rules.”
He encourages physicians to hold OIG accountable for its
medefense.html. December 2012 TEXAS MEDICINE 19
actions and to demand the agency afford physicians proper due process in the course of investigations. “If this is not done, we will have decreased Medicaid partici- pation rates, thereby further burdening the emergency rooms and raising costs to the state and taxpayers. Physicians will not want to come to Texas, thereby decreasing access to care, and physicians will have less control over the practice of medicine, placing it in the hands of bureaucrats and destroying the qual- ity of our medical system,” Dr. Lewis said. Ms. Goodman explains that due process under the new rules hasn’t changed.
“Depending upon the type of case, the provider may receive a notice of potential sanction before any final decision is ren- dered. That notice gives the provider an opportunity to sched- ule an informal review with OIG to sit down and talk about the case so we can work to resolve some or all of the allegations,” she said.
In the absence of notice of potential sanction or failure to
resolve the issue via informal review, however, OIG issues a notice of final sanction. “The provider can then conduct another informal review, an appeal, or both. If the second informal review does not resolve all issues, the case can be docketed for a contested case hear- ing before an administrative law judge,” she said. Physicians can request an expedited hearing, but Ms. Good- man says cases typically are set for hearing within 60 to 75 days of the request.
Should an administrative law judge determine the evidence against a physician doesn’t constitute fraud, Ms. Goodman says all funds OIG withholds from the physician flow back to the physician.
“But that judge could determine that the provider was over- paid due to waste, abuse, or inadvertent error even without a fraud finding. In that case, the judge could still allow the agency to recoup the overpayment using held funds,” she said.
TMLT HAS YOU COVERED
All Texas Medical Liability Trust (TMLT) policies covering individual physicians include the Medefense Endorsement, which provides reim- bursement for legal and tax audit expenses for disciplinary proceedings. Medefense covers payment of civil fines and penalties associated with disciplinary proceedings with limits of $50,000 per insured event and an annual aggregate limit of $100,000 per policy period. Medefense ben- efits are subject to a $1,000 deductible, and physicians pay 10 percent of the legal expenses as coinsurance after meeting the deductible. For more information, visit
www.tmlt.org/services/insurance/
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