Manufacturers, Distributors and Physicians in the Crosshairs of Opioid Litigation

2020 Alliance sponsor feature article courtesy of MagMutual

According to data from the National Vital Statistics System, approximately 70,237 overdose deaths occurred in the United States in 2017.¹ Drug poisoning deaths have outnumbered deaths by firearms, motor vehicle crashes, suicide and homicide.² Against the backdrop of this public health crisis, some predict that opioid litigation will look like the tobacco litigation of the 1990s³ – and pharmaceutical companies, distributors and individual physicians are getting caught in the crosshairs.

In early 2019, Purdue Pharma agreed to pay the state of Oklahoma $270 million rather than face trial on charges of misleading marketing practices and misrepresentation regarding Oxycontin.⁴ Many state and local jurisdictions are seeking to recover some of the costs associated with combatting the epidemic. Other companies entangled in litigation include Johnson & Johnson and CVS. According to Bloomberg Law, “In all, more than 1,800 state and local governments have filed opioid-related lawsuits. Penalties and settlements could run into the tens of billions of dollars, rivaling big tobacco payouts of the 1990s.”⁵

Although the medical community has implemented guidelines for safer prescribing in recent years, individual physicians are also finding themselves in this wave of litigation. Physicians are often faced with a dilemma: balancing the need to provide compassionate and safe care to patients in pain with the risks associated with prescription pain medications. The Federation of State Medical Boards developed a model policy that addressed fears about treating patients with opioids, stating:

Physicians should not fear disciplinary action from the Board for ordering, prescribing, dispensing or administering controlled substances, including opioid analgesics, for a legitimate medical purpose and in the course of professional practice, when current best clinical practices are met.⁶

Nonetheless, there has been a significant increase in litigation against prescribers.

In 2016, a St. Louis jury issued one of the first mega-verdicts in an opioid-related malpractice claim. The case was filed by Brian Koon, a city parks worker who became addicted to prescription opioids. Over the course of three years, Mr. Koon was prescribed 37,000 pills for lower back pain. At one point, the prescription totaled almost forty pills a day with three different types of opioids. Mr. Koon filed suit against the doctor who prescribed the medication, and after years of litigation, he won. The jury awarded Mr. Koon $1.4 million with an additional $1.2 million to his estranged wife. The jury also awarded $15 million in punitive damages against the prescriber and the hospital where he was employed.⁷

In another case, The Supreme Court of West Virginia held that prescribers could be held liable for their patients’ addiction.⁸ Twenty-nine individual patients filed eight separate civil actions alleging that three pharmacies, a physician and other medical providers negligently prescribed and dispensed controlled substances, causing them to become addicted to and abuse the controlled substances. The court decided that, although the patients were responsible for their own addiction and had engaged in illegal acts to obtain controlled substances, the providers also engaged in questionable activities that may have been a factor in causing the addiction. Ultimately, the court allowed the patients to sue providers and allowed juries to apportion fault to both patients and providers for causing the addiction.⁹

Physicians can also be held liable when a patient overdoses on a prescribed medication. In 2015, a California physician was convicted of second-degree murder and sentenced to thirty years in prison. She was accused of ignoring “red flags” about her prescribing habits, including the overdose of a patient in her clinic and receiving nine phone calls in less than three years from authorities informing her that patients had died with drugs in their system.¹⁰ Witnesses told jurors that the physician agreed to give patients powerful opioids without asking follow-up questions even after some – including an undercover agent posing as a patient – told her about their drug addictions.¹¹

Strategies for Reducing Risks Related to Opioid Prescribing

In its report, Relieving Pain in America, an IOM task force recommends twelve best practices measures¹²:

1. Recognize that chronic pain is a disease in its own right.
2. Promote and enable self-management of pain.
3. Address gaps in knowledge and competencies related to pain assessment and management.
4. Avoid negative attitudes about people with pain, and stereotyping and biases that contribute to disparities in care.
5. Develop educational approaches and materials for people with pain and their families that promote and enable self-management.
6. Provide consistent and complete pain assessments.
7. Use opioid therapy for chronic non-cancer pain only when safer and reasonably effective options have failed.
8. Provide patient education and obtain informed consent when using opioid analgesics.
9. Monitor during the use of potentially abusable medication.
10. Avoid excessive reliance on opioids, particularly high-dose opioids for chronic pain management.
11. Utilize available tools for risk mitigation, such as the state Prescription Drug Monitoring Program.
12. Utilize a medication use agreement.

Sources:
[1] Scholl L, Seth P, Kariisa M, Wilson N, Baldwin G. 2018. “Drug and opioid-induced overdose deaths 2013-2017.” Morb Mortal Wkly Rep. ePub:.
[2] Ibid.
[3] Wheeler, Lydia. 2019. “Squandered big tobacco money a cautionary tale in opioid cases.” Bloomberg Law, June 19. Accessed June 20, 2019. https://biglawbusiness.com/squandered-big-tobacco-money-a-cautionary-tale-in-opioid-cases.
[4] Mann, Brian. 2019. “Purdue Pharma reaches $270 million in opioid settlement with Oklahoma.” NPR, March 26. Accessed June 20, 2019. https://www.npr.org/2019/03/26/706969415/purdue-pharma-reaches-270-million-opioid-settlement-with-oklahoma.
[5] Mann, Brian. 2019. “Opioid crackdown could lead to more drug company bankruptcies.” NPR, June 10.
[6] Federation of State Medical Board. “Model Policy on the Use of Opioid Analgesics in the Treatment of Chronic Pain.” Washington, DC, July 2013.
[7] Brian Koon and Michelle Koon, Respondents, v. Henry D. Walden and Saint Louis University, Appellants. 2017. 539 S.W. 3d 752 (Missouri Court of Appeals, Eastern District, Division One).
[8] n.d. “Tug Valley Pharmacy et al v All Plaintiffs. In: LEXIS, West Virginia Court of Appeals, 2015.”
[9] Ibid.
[10] Gerber M, Girion L, Queally J. California doctor convicted of murder in overdose deaths of patients. In: Los Angeles Times, Los Angeles: Los Angeles Times, 2015.
[11] Ibid.
[12] Institute of Medicine. Relieving Pain in America: A Blueprint for Transforming Prevention, Care, Education and Research. Washington, DC: Institute of Medicine, 2011.

Congratulations to our Membership VISA Gift Card Winners!

For our 2020-21 NCMGMA membership renewals, any member who renewed their membership by October 29th was entered into a drawing for one of three $100 VISA gift cards. Congratulations to our renewal gift card winners:

• Tim Bell, Children’s Health of Carolina, PA
• Michael Brohawn, Orthopaedics East & Sports Medicine Center
• Laura Henry, Foot & Ankle Associates

A big thank you to MagMutual for their sponsorship of
our membership gift card giveaway!

About NCMGMA:

North Carolina Medical Group Management Association (NCMGMA) was formed to provide professional administrators with a rich source of information and contacts for professional growth. From the mountains to the coast, our membership includes executives and managers of private group practices, academic medical centers, integrated delivery systems, and companies that support medical provider organizations. Over the past 49 years, we have expanded our resources and have made exceptional strides across the state in representing our industry including:

Networking:

• 600 members from all across the state
• Active and engaging Chapters to increase local networking and educational opportunities
• Job Postings sent through our membership and posted on our website
• Updated NCMGMA Website with member directory
• Active membership listserv

Education:

• In 2021, NCMGMA is planning for our Annual Conference (May), and Fall Conference (September). These educational offerings provide CEUs and update our membership with valuable and timely industry information and knowledge.
• In addition, we partner with the North Carolina Medical Society to add ten free webinars during the year.

Advocacy:

• Formed alliances and partnerships with organizations, such as the NC Medical Society and others in order to provide more industry knowledge to our members.
• Committees such as Payer Contracting, BCBS, Advocacy, Medicaid and Medicare with active members engaged to help you and your practice navigate through questions and concerns.

Don’t forget about one of our largest member benefits: NCMGMA’s NC Medical Employee Salary & Benefits online survey for Medical Practices! 2020 data entry is now open through November 25th. Click here for details and participation.

NCMGM Member Discount for large practices and healthcare systems!

If your practice or company has 5 or more members, then you qualify for a 10% membership discount! Please contact the NCMGMA offices for additional details at info@ncmgm.org.

How to Renew:

To renew your membership online, go to www.ncmgm.org, click “Member Login,” and insert your username and password. If you have forgotten your password or need to set up a new one, follow the instructions on the login page. Once on your profile page, see the “yellow box/go button.”

Joining NCMGMA:

If you would like to join NCMGMA or have any questions about our organization and the benefits of membership, please visit our “Join Now” page here.

Questions:

If you have questions about your dues or about benefits of membership, please email us at info@ncmgm.org.

Tips for Responding to Online Reviews

2020 Alliance sponsor feature article courtesy of MagMutual

Top Five Recommendations:

Acknowledge feedback quickly – Consumers turn to social media for information and expect healthcare organizations to monitor online feedback, especially on their own social media pages and high-traffic sites. It’s important for organizations to perceive online reviews as valuable patient feedback. Acknowledging those activities validate patient feelings and show an organization’s commitment to providing quality care. Consider having individuals closely monitoring accounts and providing feedback within 24 hours.

Keep responses anonymous – It is extremely important to maintain HIPAA compliance when responding to online reviews. By providing generic responses, without PHI or individual patient care details, an organization can safeguard itself against fines and other penalties.

Adhere to standard protocols – Create and follow standard protocols for responding to online reviews. Determine the appropriate individual(s) to monitor online feedback. Establish time frames for online feedback reviews and responses. Use pre-approved, HIPAA-compliant responses for positive and negative feedback. If possible, remove feedback that contains offensive language or hate speech and use a templated statement about removing that type of language.

Use templated responses – Developing a few responses for positive and negative reviews can ensure that they are generic, HIPAA-compliant, timely and remove any bias or anger that might present itself in individual responses. These templates can be reviewed by your insurance risk management team and providers for approval and quickly used when a new review is submitted.

Address direct issues offline – If an organization receives an online review with allegations of negligence or non-factual information, use a generic response online and don’t address any specifics. If appropriate, ask the reviewer to contact the organization to address any concerns. Communication over the phone or in person will increase the likelihood of understanding and compromise.

Top Five Cautions:

Don’t respond in anger – Unfortunately, there are times when consumers will post incorrect, rude or defamatory reviews. Responding in anger could lead to HIPAA privacy violations or online back and forth fighting for the world to see. It’s better to use a templated response and try to address the issue offline.

Don’t private message – Online messaging and email is not private, and HIPAA violations may occur if PHI is included in any online activities on behalf of an organization.

Don’t give medical advice – Medical advice, appointment scheduling, medication prescriptions/refills, lab results, billing issues, etc. should never be provided or discussed online. Those actions should only be conducted with established patients in person, over the phone or through a secure healthcare portal after patients have consented to participate and understand emergency issues shouldn’t wait for online portal responses.

Don’t delete reviews – Consumers understand that even the best organizations and providers receive negative online reviews. Unless the review contains profane language or hate speech, organizations should leave the review and ensure they have responded, showing other consumers that they review feedback and are committed to communication and improving their quality/service.

Don’t alter content – Loss of confidence in an organization will occur if responses are altered. In today’s world, online consumers routinely take screen shots of online reviews and reply messages. If a message is altered, the evidence might still remain available and could be used against an organization. Also, it’s important to remember that patients can disclose their own PHI, but the organization cannot repeat or verify/deny without authorization.

Sample Online Compliment/Complaint Responses:

Compliment – Our practice aims to deliver the highest quality patient care. We love to hear about positive experiences. Thank you for your comments.

Compliment – Thank you so much. We really appreciate your kind words and will be sure to pass your feedback on to the staff.

Compliment – Thanks for sharing this feedback with us!

Complaint – Thank you for sharing your feedback with us. We apologize for your recent experience. Please call us at [phone number] so we can improve next time.

Complaint – We are sorry to hear about your experience. We are committed to providing the best patient care. Please contact us at [phone number] so that we may speak with you and address any concerns.

Complaint with profanity – Your message was removed because it did not meet our site standards. If you have any questions or concerns, please contact our office at [phone number].

A Step-by-Step Guide for Responding to Medical Record Subpoenas

By Raj Shah, Esq., Senior Regulatory Attorney, MagMutual

2020 Alliance sponsor feature article courtesy of MagMutual

Healthcare providers are aware that HIPAA and state privacy laws place restrictions on the disclosure of protected health information (PHI) to third parties. If a request for records comes via subpoena, discovery request or any other court order, the provider must not ignore it because a response is usually required. However, while you shouldn’t ignore the subpoena or discovery request, the consequences of responding incorrectly to a request can be even more severe than those of ignoring it altogether. Once a subpoena is received, DO NOT ignore it, but also DO NOT immediately disclose the records, as you could be in violation of HIPAA or state privacy laws and face severe penalties. This article offers guidance about what to do and what not to do after being served with a subpoena or request for documents including PHI.

Step 1: Check if the Request is Signed by a Judge

Court Orders, Court-Issued Subpoenas and Grand Jury Subpoenas. If you receive a court order or a subpoena that is signed by a judge, magistrate, administrative tribunal or a grand jury subpoena, you must disclose the requested information. Still, remember to disclose only the information expressly requested, and nothing more. For example, if the subpoena asks for records relating to a specific date of service, only send records from that day and not the patient’s whole record. (If the document you received meets these criteria, there is no need to go on to the other steps, but additional information is available at the end of this document.)

Practical Advice: Look specifically for a checkbox or judge’s signature on the subpoena form to confirm the subpoena is signed by a judge and not the court clerk or attorney. The judge’s name should also be listed in print next to the signature.

Step 2: Responding to Lawyer or Clerk Signed Requests

Attorney-Issued Subpoenas or Discovery Requests. A subpoena or discovery request signed by someone other than a judge, magistrate or administrative tribunal – most likely a court clerk or an attorney – is NOT a court order. A subpoena signed by an attorney or a court clerk requires additional assurances under HIPAA. If you receive a subpoena or discovery request that is signed by an attorney or court clerk, you can not disclose information unless one of the following conditions are satisfied:

1. Provider must receive a written statement and accompanying documentation from the attorney issuing the subpoena demonstrating that:
   1. A good faith attempt was made to provide written notice of the subpoena to the patient or his or her attorney (this can be satisfied by a cover letter accompanying the request that that patient’s attorney was notified via a carbon copy);
   2. The written notice included sufficient information to allow the patient to raise an objection to the subpoena;
   3. The time for objecting to the subpoena has passed; and
   4. The patient did not object to the subpoena or that any objections by the patient were adequately resolved by the court.
2. Provider makes reasonable efforts to provide notice of the subpoena to the patient and the patient does not make any objections to the release of their PHI.
   1. Examples of reasonable efforts to notify the patient include calling the patient or sending the patient a letter via mail or email explaining that you’ve received a subpoena requesting disclosure of their protected health information, and you are required to respond unless the patient has the subpoena set aside before the time for responding has expired and notifies you that the subpoena has been set aside.
3. Provider may obtain a valid authorization form signed by the patient for the release of their records. This is the provider’s HIPAA authorization that patients in the office routinely sign to obtain their PHI. To be valid, the authorization form must contain the elements and statements required by the HIPAA Privacy Rule. The form also must be signed by the appropriate person, which may be the patient or may be the patient’s personal representative (if, for example, the patient is a child or an incapacitated adult).
   Practical Advice: If a subpoena is accompanied by an authorization or other document labeled “release” or “waiver” or something similar DO NOT USE IT. Some of the elements of an authorization that make it HIPAA-compliant are not intuitive and may be left out of a form prepared by a person (even an attorney) who is unaccustomed to working with HIPAA. If you receive a subpoena with an attached authorization for the patient to sign, do not use it and use your practice’s HIPAA authorization form instead.
4. Provider must receive a written statement and supporting documentation demonstrating:
   1. that the parties have agreed on a qualified protective order or
   2. that the party seeking the information has filed for a qualified protective order. A qualified protective order limits the use of the requested PHI to the lawsuit.
5. Provider makes reasonable efforts to obtain a qualified protective order.

If for some reason the provider cannot satisfy one of these five conditions, they may not disclose the requested PHI, but neither may they ignore the subpoena without subjecting themselves to possible contempt sanctions. Staff members should notify their supervisors if one of these conditions are not met. The supervisors will be able to contact the organization’s attorney or a risk consultant at MagMutual who can provide guidance.

Step 3: See What Information is Being Requested

After determining the attorney-signed subpoena is valid, look at what information is being requested and be sure to provide only what was requested. In most states, for example, a subpoena must specifically ask for specially protected records such as those related to mental health and substance abuse. A subpoena asking for all of a patient’s medical records would not be sufficient to obtain those documents. See the examples below.

1. General Request for Entire Record. If the subpoena is for a patient’s entire medical record, release the record except for specially protected records. Specially protected records include mental health records; drug/alcohol treatment records; psychotherapy notes; testing for or treatment of HIV, AIDS and STDs; and mental health, behavioral health or treatment records of substance abuse programs. If you are unsure if a part of the record is specially protected, ask a supervisor.Practical Advice: Remember when communicating with the party seeking the record, even mentioning the existence of this highly sensitive PHI could be a HIPAA violation. For example, do not say, “We can send over the record except for the HIV treatment information.”
2. Requests for Specially Protected Records. If the request specifically asks for specially protected records, they can only be released under one of the following conditions:
   1. A court order signed by a judge specifically ordering the records related to these specially protected areas; or
   2. A valid authorization signed by the patient specifically authorizing the practice to release that portion of the record.

Step 4: Watch and Diary the Calendar

Once you know which records to send, pay attention to the calendar. Note the date by which the records are required, which sometimes can be too soon for the provider to comply. A short deadline also doesn’t allow enough time if the patient must be contacted for authorization or for the patient to object to the subpoena. It is not unusual for a subpoena to request records be delivered within a week. If the time to respond seems too short, contact your supervisor. If no time to respond to the subpoena is listed, you should respond after 21 days (ideally between 21 and 25 days). Remember, do not immediately respond even if it is a valid subpoena. This gives the patient time to sign an authorization or file an objection.

General Checklist for Responding to a Subpoena Requesting Protected Health Information

These are steps to be taken to comply with a subpoena while at the same time protecting patient privacy and confidentiality. A provider should do the following:

1. Confirm that the subpoena is valid (if it’s from an out-of-state court, it’s probably invalid)
2. Identify who signed the subpoena (e.g., judge, administrative agency, attorney, court clerk)
3. If the subpoena is signed by an attorney, contact the party issuing the subpoena to obtain satisfactory written assurances or a qualified protective order.
4. When the subpoena is requesting records relating to a limited number of patients, notify the patients whose records are being sought as already outlined and/or determine whether the patients will provide a valid HIPAA authorization that complies with HIPAA. (Remember you can use either a MagMutual authorization form or your practice’s existing authorization form.)
5. If there are any questions about whether or which documents can be produced, ask your supervisor.
6. Consider whether other laws in addition to HIPAA limit disclosures (e.g., state law limits on disclosures for mental health records and drug/alcohol treatment records).

Considerations for Deceased Patients

If a subpoena is requesting the medical records of a deceased patient, the same rules listed above apply, except that any authorization must be given by a “personal representative” of the deceased patient. The executor of the patient’s estate is a “personal representative” and may sign the authorization as well as be substituted for the deceased patient for the purpose of notice or qualified protective orders. The patient may also sign a HIPAA release prior to death that designates an individual to have access to their PHI. Even if not an executor or specifically designated by a HIPAA authorization form, family members or individuals involved in the patient’s care may also be “personal representatives” if the request is relevant to their involvement in the patient’s care, unless releasing the records is against the preference of the deceased patient.

Physician Safety and Protection in the Outpatient Setting

By Asha Patel Shah, MD, FAAD
2020 Alliance sponsor feature article courtesy of MagMutual

Physicians are experiencing a growing incidence of workplace violence in the outpatient office setting. Workplace violence can take on many forms such as emotional, mental, verbal and physical harassment or abuse. This can even extend online in the form of cyber bullying and stalking. According to the Occupational Safety and Health Administration (OSHA), approximately 75 percent of nearly 25,000 annual assaults occurred in the healthcare/social service arena. In addition, workers in healthcare settings were four times more likely to be victims than workers in private industry.

We are generally silent on this issue and underreport violence because we subconsciously accept it as a part of the job. Patients who exhibit violence or abusive nature may have physical injury or mental incapacity that affects their ability to appropriately control their behavior, which can lead us to excuse an outburst because we are empathetic to their vulnerable situation. However, with the dramatic changes in medicine that include longer wait times, less quality time with the patient, higher co-pays and deductibles, shrinking pharmacy formularies and endless bureaucracy, the environment is ripe for increased and sometimes misplaced anger against the healthcare community. Keeping yourself and your office protected from violent situations will allow you to continue to serve patients without feeling burnout. Remember, most patients are very grateful for the care they receive.

Below are a few tips that can help keep everyone safe:

1. Anticipation – One of the best ways to avoid a negative situation is to be aware it could occur. Teaching your staff to identify situations that could lead to a patient breakdown should be a priority. For example, communication between patient care staff and reception staff can keep waiting patients updated. Usually, if the patient’s long waiting time is acknowledged by staff with a polite apology and explanation, anger can be diffused.
2. De-escalation Techniques – Likewise, de-escalation protocols can be used for specific patient encounters. For example, using a combination of verbal and non-verbal techniques to build rapport with an agitated patient can do wonders for all parties involved. Taking the time for active listening, reflective language and creating a calm environment usually do the trick. Also, having a patient support representative or office manager on site can help bridge the situation to an amicable agreement and allow the physician to keep on track with patient care.
3. Environmental Design – Patient care layout is key. First, empower your reception staff as the gatekeepers to the patient care area. There should be a physical distinction between the waiting area and the path towards patient rooms, preferably a locked door that can be operated electronically via office ID tag or remotely via button. Patients or visitors should only be allowed to enter the patient care area under direct supervision of office staff.
4. Video Surveillance Systems – Another idea is to consider an external and internal continuous video surveillance system. Important areas to monitor are reception desks, nurses’ stations, common patient thoroughfares and all entrances/exits to the building. Of course, abide by states laws regarding audio/video surveillance in patient settings, such as no surveillance in sensitive areas where undressing occurs and posting notification signs in public areas notifying visitors that video surveillance is occurring.
5. Emergency Alert Plans – A variety of situational awareness alert systems can be established for both physician and staff. Set up a non-threatening code word or hand signal that only your staff knows that can be used to signal for help in the presence of an unstable situation. For example, asking staff to call for “Dr. Grey” can be a code for “privately call 911.” If financially viable, carrying a wireless panic button or having one installed in each patient care room would also be effective. It is also important to have a medical staff member assist as a patient chaperone and witness, however a code word or panic button can serve as an alternative in an emergency situation.
6. Situational Awareness of Weapons – The reality is weapons can enter the office setting both legally and illegally. Having a weapons policy posted at the patient entrance should be strongly considered and consistent with state law to protect yourself, your staff and your patients. The other reality is the possibility of an armed intruder or active shooter. Every medical setting needs to be prepared and alert. At minimum, an emergency plan and establishing a relationship with the local police department is a must.
7. Practice Drills – With on-site staff, help keep everyone informed and prepared if the worst-case scenario were to unfold. Professional trainers are also available to serve as mentors to combat these unique but increasingly common situations. The recent Workplace Violence Prevention for Health Care and Social Service Workers Act is a step in the right direction but more work is yet to be done for physicians in the outpatient setting.

The following links offer additional information on workplace violence in the healthcare setting:

• OSHA Safety and Health Topics: Workplace Violence
• CDC Workplace Safety & Health Topics: Occupational Violence
• WHO Framework Guidelines for Addressing Workplace Violence in the Health Sector

March Message from the NCMGMA President

March President’s Message
Steve Parker, 2019-20 NCMGMA President

Friends,

I know I speak for all of us in expressing amazement that the end of the 1st quarter of 2020 is just around the corner. And what an exhausting year it has already been! The unexpected rise of a worldwide pandemic, a roller-coaster political environment, and extreme economic gyrations have, I’m sure, challenged us all – both personally and professionally. It’s in times like these, however, that our collective efforts in helping each other be prepared for whatever is around the corner is more important than ever. Thank you for contributing to the impact that NCMGMA can have in promoting stability and safety for the patients of this state.

There’s much to update you on, so I’ll try to hit the highlights briefly:

Annual Conference/May 13-15. Registration is open for our cornerstone annual event, which this year will be held at the Grande Dunes Marriott in Myrtle Beach. Our Conference Committee has put together a stellar agenda for this meeting, including two keynote sessions centered on the patient experience led by the world-renowned Ritz-Carlton Leadership Center. I would encourage you to review the full agenda here (https://www.ncmgm.org/annual-conference-meeting-agenda).

It is important to note we are, indeed, still planning to hold this conference. Since it is slated to be held in mid-May, we currently believe to do anything otherwise at this moment would be premature. However, please be assured we are continuously monitoring this issue, that the health and well-being of our members and guests is our highest priority, and we will continue to rely upon the guidance of the CDC and NCDHHS as we move forward. At this point, I would encourage you to register for the meeting and book your hotel reservations.

Salary and Benefit Survey Results. Thanks to the many, many practices who participated in our survey! We were immensely pleased at the level of participation – which encompassed almost 6,100 medical office job positions. The results are in and ready for your review. More information, a demo webinar, and a link to purchase the survey is included in our NCMGMA News posting.

Advocacy Days/June 9-10. Once again, our Advocacy Committee has arranged an absolutely spectacular line-up of speakers/panels for our Advocacy Days event to be held in Raleigh. It’s no news flash that it’s an election year – so it’s particularly critical this year that you and your practices are heard by leadership in state government, and that you hear from them, so that our collective interests are represented. Be there and be heard!

MGMA State Leaders Conference. In January, representatives from NCMGMA leadership attended this annual meeting hosted by MGMA, which provides us with an opportunity to collaborate with boards/leadership from MGMA state chapters all over the country. I’m pleased to announce that NCMGMA was awarded 4th place in the “State Affiliate of the Year” recognition, which is something in which we can all take pride. We are immensely grateful to our friends and partners at MagMutual, NCMGMA’s Executive Sponsor, for their gracious assistance in underwriting our ability to attend this meeting. Thank you!

A famous mathematician once said, “Uncertainty is the only certainty there is.” And we are certainly in uncertain times. I’m grateful to all of you – medical practice executives, practice/billing consultants, medico-legal professionals, our association staff and our indispensable Alliance Sponsor partners – for all that you do to make this one of the most successful MGMA state chapters in the country. Together, we make a difference!

Best,

Steve Parker
2019-20 NCMGMA President

Congratulations to our Renewals Gift Card Drawing Winners

Congratulations to our Gift Card Drawing Winners!

Thank You to MagMutual for their sponsorship
of our membership gift card giveaway!

VISA Gift Card Drawing Winners

Every NCMGMA member who paid their 2019-20 membership dues by October 27th was entered into a drawing to win one of three VISA gift cards, provided courtesy of MagMutual. The winners of this year’s gift card drawing are:

• Mark Holmstrom, MAHEC
• Kari Kalgren, K2 Health
• Kimberly Sparks, GirlTalk & Gynecology

Renew Your Membership Online & Update Your Member Profile

North Carolina Medical Group Management Association (NCMGMA) was formed to provide professional administrators with a rich source of information and contacts for professional growth. From the mountains to the coast, our membership includes executives and managers of private group practices, academic medical centers, integrated delivery systems, and companies that support medical provider organizations. Over the past 47 years, we have expanded our resources and have made exceptional strides across the state in representing our industry including:

Networking:

• Expanded membership growth to over 700+ members from all across the state
• Active and engaging chapters to increase local networking and educational opportunities
• Job Postings sent through our membership and posted on our website
• Updated NCMGMA website with member directory
• Active membership listserve

Education:

• In 2020, NCMGMA is planning for our Annual Conference (May), and Fall Conference (September). These educational offerings provide CEUs and update our membership with valuable and timely industry information and knowledge.
• In addition, we partner with the North Carolina Medical Society to add ten free webinars during the year.

Advocacy:

• Formed alliances and partnerships with organizations, such as the NC Medical Society and the NC Healthcare Information & Communications Alliance (NCHICA) and others in order to provide more industry knowledge to our members.
• Committees such as BCBS, Advocacy, Medicaid and Medicare contain active members engaged to help you and your practice navigate through questions and concerns. In 2019, NCMGMA initiated the new Payor Contracting Committee to help support members and payors in developing sustainable, collaborative relationships, increase member awareness of key considerations relative to our state’s payor contracting landscape and to serve as a resource for members in addressing overarching payor contracting issues.

NCMGM Member Discount for Healthcare Systems!

If your practice or company has 5 or more members, then you qualify for a 10% membership discount!  Please contact the NCMGMA offices for additional details at info@ncmgm.org.

How to Renew Your Membership:

Don’t miss out! Pay your NCMGMA dues online prior to October 31st, when your membership benefits will expire. Go to www.ncmgm.org, click Member Login, insert your username and password.  If you have forgotten your login credentials, click on the “Forgot your username?” or “Forgot your password?” links on the Member Login page. Once on your profile page, see the “yellow box/go button” and follow the instructions.

Questions:

If you have questions about your dues or about benefits of membership, please email us at info@ncmgm.org.

NCMGM Dues Renewal Time: Your NCMGMA Membership Expires October 31

Renew your dues online prior to October 27th for a chance to win one of three $100 VISA gift cards!

Thank You to MagMutual for their sponsorship
of our membership gift card giveaway!

Renew Your Membership Online & Update Your Member Profile

North Carolina Medical Group Management Association (NCMGMA) was formed to provide professional administrators with a rich source of information and contacts for professional growth. From the mountains to the coast, our membership includes executives and managers of private group practices, academic medical centers, integrated delivery systems, and companies that support medical provider organizations. Over the past 47 years, we have expanded our resources and have made exceptional strides across the state in representing our industry including:

Networking:

• Expanded membership growth to over 700+ members from all across the state
• Active and engaging chapters to increase local networking and educational opportunities
• Job Postings sent through our membership and posted on our website
• Updated NCMGMA website with member directory
• Active membership listserve

Education:

• In 2020, NCMGMA is planning for our Annual Conference (May), and Fall Conference (September). These educational offerings provide CEUs and update our membership with valuable and timely industry information and knowledge.
• In addition, we partner with the North Carolina Medical Society to add ten free webinars during the year.

Advocacy:

• Formed alliances and partnerships with organizations, such as the NC Medical Society and the NC Healthcare Information & Communications Alliance (NCHICA) and others in order to provide more industry knowledge to our members.
• Committees such as BCBS, Advocacy, Medicaid and Medicare with active members engaged to help you and your practice navigate through questions and concerns. In 2019, NCMGMA initiated the new Payor Contracting Committee to help support members and payers in developing sustainable, collaborative relationships, increase member awareness of key considerations relative to our state’s payer contracting landscape and to serve as a resource for members in addressing overarching payer contracting issues.

NCMGM Member Discount for healthcare systems!

If your practice or company has 5 or more members, then you qualify for a 10% membership discount!  Please contact the NCMGMA offices for additional details at info@ncmgm.org.

How to Renew Your Membership:

Don’t miss out! Pay your NCMGMA dues online prior to October 31st, when your membership benefits will expire. Go to www.ncmgm.org, click Member Login, insert your username and password.  If you have forgotten your login credentials, click on the “Forgot your username?” or “Forgot your password?” links on the Member Login page. Once on your profile page, see the “yellow box/go button” and follow the instructions.

Questions:

If you have questions about your dues or about benefits of membership, please email us at info@ncmgm.org.

Can an Audit or Regulatory Proceeding Really Happen to You? Yes it can.

By Stephanie Dozier and Austin Marshall

2019 Alliance sponsor feature article courtesy of MagMutual

Regulation of the healthcare industry is increasing. Almost every aspect of a medical practice is now regulated, including interactions with patients, employees, vendors, and even how you bill for your services.

Though the headlines are filled with articles about million dollar settlements between the government and providers, hospitals, or pharmaceutical companies, no one thinks it will happen to him or her.

What if it does? Do you have a plan in place for when you receive a large audit demand, subpoena or civil investigative demand (CID)? What will you do if you receive a six-figure recoupment demand for billing errors from a government auditor?

Don’t wait until it happens to have a plan in place.

You’re Being Audited, Now What?

Understanding how the audit process works and having a knowledgeable person guide you through it is essential. The government and its audit contractors do not discriminate on specialty, size or location when mining your billing data for possible errors. The auditors are looking for a wide variety of mistakes or intentional deceit. These items include things like upcoding, (using a higher paid code in place of a lower code), incorrect or inadvertent mistakes in coding, or lack of documentation.

Routine audits can quickly turn into large repayment demands from payers. These demands should not be paid automatically. You may want to consider the appeals process.

There are five steps in the appeals process:

1. Redetermination – Typically, this can be done in-house if the organization or provider has trained personnel to prepare the appeal; however, it’s recommended that you engage counsel as soon as you get the audit.
2. Reconsideration – This is a request by the organization or provider to have the data reviewed by a Qualified Independent Contractor who was not involved in the redetermination. It is advisable at this stage to obtain the help of an experienced healthcare attorney. The reason for the appeal and all supporting data should be presented.
3. Administrative Law Judge (ALJ) Hearing – At this level, the case will be heard by an administrative law judge. There are significant delays at this level due to the backlog of cases. It could take two to three years for the case to be to be heard. Only certain cases which meet the dollar amount threshold can be appealed at this level.
4. Appeals Council Review – At this level a Medicare appeal council will review the ALJ decision and make a decision.
5. Judicial Review in Federal Court – Only certain cases with a minimum dollar amount make it to this level, the court will review the Appeals Council’s Review and make a determination.

The appeal process can be timely and costly and there are time constraints involved in each step. These steps must be followed or you could inadvertently lose the ability to appeal to the next level. Be prepared and have a team in place that is ready to respond should you receive a demand for repayment.

What to do When You Receive a CID

A subpoena or CID typically comes from the US Department of Justice or HHS-OIG and is a formal legal inquiry that must be responded to appropriately and timely. These are typically related to allegations pertaining to the False Claims Act, Stark Law, or Anti-Kickback Statute. Your organization should immediately contact legal counsel and your insurance carrier upon receipt of a subpoena or CID. If you receive a CID or subpoena you must preserve all data and documents or your defense could be jeopardized.

If documents or data are destroyed, additional penalties may apply.

Having a knowledgeable attorney is key to a successful response to a subpoena or CID.

Staying Ahead of a False Claims Act Investigation

Many times a False Claims Act (FCA) investigation may have already begun by the government long before you become aware. If there is a whistleblower, (also known as a Relator), then the case must be kept confidential for a set time to allow the government time to investigate before you are notified.

Some of the common types of FCA cases in the healthcare industry involve:

• Billing for items or services not provided
• Billing for items or services (not medically necessary)
• Inflated billing (upcoding)
• Stark Law or Anti-Kickback Statute violations

These matters can result in significant recoupment amounts and fines and penalties imposed by the government. Penalties can range from $11,181 to $22,363 for each false claim plus three times the amount of damages because of the false claims.

There are some steps you can take to minimize your risk for an audits or regulatory proceedings:

1. Have a billing and coding compliance program that is continually reviewed
2. Provide yearly coding education
3. Hire properly trained and certified billing and coding staff and ensure that they have access to continuing education
4. Have open communication with staff and a process for reporting any improper billing
5. Engage a consultant to do an audit of the billing and address any deficiencies that are found
6. Work with legal counsel to prepare a voluntary self-disclosure if errors are found
7. Have all contracts reviewed by an experienced healthcare attorney to ensure compliance with all laws and regulations, including the Stark Law and Anti-Kickback Statute
8. Consider purchasing insurance to transfer some of the financial risk for billing errors proceedings and other regulatory proceedings

References:

AAPC. Dustman, Renee. Respond to a Payer Audit: Not so fast! https://www.aapc.com/blog/27005-respond-to-a-payer-audit-not-so-fast/ March 1, 2014.

Sheppard Mullin. Loveland, Christopher and Couvillon, Christine. You’ve Been Served – What to Do When You Receive an Agency Subpoena or CID (Part II). https://www.fcadefenselawblog.com/2016/10/youve-been-served-what-to-do-when-you-receive-an-agency-subpoena-or-cid-part-ii/ October 24, 2016.

American Bar Association Health Law Section. Navigating the Perilous Waters of the False Claims Act from Medical Necessity to the Anti-Kickback Statute and Beyond. https://www.americanbar.org/content/dam/aba/events/health_law/2015_Meetings/DocLaw/Slides/12_panel_01.authcheckdam.pdf

NCMGMA Awarded 2nd Place in MGMA 2019 State Participation Award

Last week, members of NCMGMA’s Board of Directors were present for MGMA’s State Leadership Summit in Denver, CO, where NCMGMA was awarded 2nd place in MGMA’s State Participation Award category. NCMGMA will be awarded $2,500 for winning 2nd place.

The State Participation award recognizes the efforts of outstanding state MGMA affiliates in promoting the medical practice management profession. Award recipients are chosen based on how well they performed in three main areas of focus: advancement of the profession through ACMPE, advocacy and survey participation.

In photo from left to right: Melissa Klingberg; Todd Pittman, CMPE; Lisa Hooks, CMPE; Sandra Jarrett, FACMPE; Jane Lutz; Chad Ghorley; Steve Parker; Leah Paraschiv, CMPE; and Tessa Wolfarth.

Thank you MagMutual for helping to underwrite the NCMGMA board of director’s trip to the MGMA Leadership Summit!