What is the OIG Exclusion List, and How Could it Affect Your Practice?

The Office of the Inspector General (OIG) of the U.S. Department of Health & Human Services maintains a list of healthcare providers who are excluded from participating in Medicare, Medicaid, and all other Federal health care programs. This list is known as the “List of Excluded Individuals/Entities (LEIE)” and it is a BIG DEAL for the healthcare providers who unfortunately find themselves on this list. Inclusion on the list seriously prohibits a provider’s ability to treat patients, as well as their ability to obtain employment opportunities.

For what actions or events will a healthcare provider find themselves on the OIG Exclusion List?

Permissive Exclusions: The OIG has discretionary authority to exclude individuals and entities for the following reasons:

  • Misdemeanor convictions related to fraud or the obstruction of an investigation or audit;
  • Misdemeanor convictions related to the unlawful manufacture, distribution, prescription, or dispensing of controlled substances
  • The suspension, revocation, or surrender of a license to provide health care for reasons bearing on professional competence or financial integrity;
  • A provider’s exclusion or suspension under Federal or State health care programs;
  • The submission of false or fraudulent claims to a Federal health care program by the provider;
  • A provider’s default on health education loans or scholarship obligations; or
  • A provider’s role in controlling a sanctioned entity as a manager, officer or owner.

Mandatory Exclusions: The OIG is required by law to exclude individuals and entities for the following reasons:

  • Conviction of Medicare or Medicaid fraud;
  • Patient abuse or neglect;
  • Felony convictions for other health care-related fraud, theft, or other financial misconduct; or
  • Felony convictions relating to unlawful manufacture, distribution, prescription, or dispensing of controlled substances.

For a complete list, and more details about permissive and mandatory exclusions, see 42 U.S.C.A. § 1320a-7. For more information about the OIG Exclusion list, visit the Office of Inspector General’s website here.

Bottom line: for physicians, nurse practitioners, and other health care providers facing disciplinary charges by their state medical or nursing board, or those healthcare providers facing potential criminal charges, it is important to know that licensure discipline and criminal charges, among other things, could land a provider on the OIG Exclusion list, and lead to an even steeper uphill battle back to the practice of medicine or nursing.

For employers, it is important to know that an entity can face severe penalties for attempts to recover payment from the federal government for patient care performed by an individual on the OIG exclusion list. I recommend that employers check the Exclusions Database prior to hiring new health care providers to determine if potential hires fall on this list, and to avoid potential liability for the organization.

If a provider is currently on the OIG exclusion list, he or she can apply for reinstatement to participate in Federal health programs once the specified period of exclusion ends. To apply for reinstatement, follow the instructions found here.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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CDC and FDA Add New Guidelines and Regulations Aimed at Curbing Overprescribing of Opioids

The Center for Disease Control and the Federal Drug Administration both recently released new guidelines, from the CDC, and new regulations, from the FDA, aimed at addressing the rising concern about the nationwide opioid epidemic. Not coincidentally, these guidelines and regulations were announced within a week of one another. I think this signals a strong message from the federal government to both state governments and health care providers: if you won’t fix this problem, we will.

CDC’s New Guidelines for Prescribing Opioids for Chronic Pain

Although many states have released their own guidelines for the management of chronic pain (Tennessee’s guidelines, released in 2014, are accessible here), this is the first set of guidelines available nationwide to healthcare providers. The CDC’s guidelines include 12 main recommendations, which include establishing treatment goals with patients prior to starting a patient on opioids, and avoiding concurrent opioids and benzodiazepines whenever possible.

The starting dosage recommendation of 50 mg morphine equivalent will likely result in some push back from providers, but I think this low number indicates how strongly the CDC feels about the riskiness of prescribing opioids at all for chronic pain in patients. Health care providers—physicians, nurse practitioners, and physician assistants—who have the ability to prescribe and who provide care for patients with chronic pain need to ensure that they are properly documenting justification for their medical diagnosis of patients with chronic pain, as well as their chosen treatment of each patient’s chronic pain.

Federal Drug Administration’s Safety Label Changes for Immediate-Release Opioid Pain Medications

The FDA released new regulations last week with required labels on immediate release (IR) opioid pain medication, including a box on IR opioid prescriptions warning about the risks for misuse, abuse, addiction, overdose and even death. These regulations are a follow up to the FDA’s 2013 prescription warnings on extended-release/long-acting (ER/LA) opioids resulting from the FDA’s concern of the risks associated with long acting opioids. Today, the FDA is acknowledging and clarifying that immediate release opioids are also dangerous, and play a persistent role in addiction, abuse, and overdose mortality related to opioid use.

What Do These Guidelines and Regulations Mean?

The CDC’s Guidelines for prescribing opioids and the FDA’s new labeling requirements for IR opioid pain medication indicate concern at the federal level regarding the prescribing of opioids. Healthcare providers who prescribe opioids should be cautious about their prescribing of these medications, and always document to demonstrate the provider’s decision-making in prescribing an opioid, and the patient’s clear medical need for the medication.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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When Personal & Professional Life Intersection: Notifying Your Licensing Board About your Criminal History

As a licensed professional, it can be difficult to remember that your personal life is not completely separate from your professional life. In the state of Tennessee, health care providers such as physicians, nurse practitioners, and physician assistants are required by law to update their online profiles with the Department of Health regarding criminal convictions, as well as other adverse events.

Here’s the law in Tennessee: Health care providers (defined in T.C.A. § 63-51-102(b)) must update information “required to be reported” to the Department of Health within 30 days after the occurrence of an event or attainment of a status. T.C.A. § 63-51-117(d).

What is information that is “required to be reported?”

  • Criminal convictions for felonies and “serious misdemeanors,” as determined by the Board, within the past ten (10) years;
  • Any final disciplinary action by a licensing board in any state within the past ten (10) years;
  • Any peer review action taken by a hospital resulting in a provider’s loss or restriction of privileges;
  • All health care liability civil court judgments against a provider over a certain threshold (this threshold varies with profession—for example, the threshold to report is $75,000 for chiropractors, but only $50,000 for dentists). (T.C.A. § 63-51-105).

Failure to accurately and timely update the Department of Health could result in civil penalties, disciplinary action, or the inability to renew your professional license. (T.C.A. § 63-51-117(e); T.C.A. § 63-51-118). Be aware of the reporting requirements in your state, and do your best to comply with such requirements in order to avoid fines, discipline, or an inability to renew your license. Further, ensure that your mailing address is up-to-date with your licensing board. Many boards only communicate via snail mail, and updating your address with your licensing board ensures that you don’t miss any important correspondence regarding your license.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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Don’t Lose Your Job, Too: The Healthcare Provider Disciplinary Process and Your Employer

Alex Fisher and Erin Tolbert, the creator of MidlevelU, discuss the implications of an investigation by a healthcare board, such as the Board of Nursing or the Board of Medical Examiners, on a healthcare provider’s employment. The original article and video, published on MidlevelU, can be found here. Although Erin and Alex discuss the effects of an investigation by a healthcare board in the context of nurse practitioners, the same advice applies to physicians and other healthcare providers.

Investigation by the Board of Nursing

Nurse Practitioners may face disciplinary action in one of two main categories: (1) prescribing and (2) professionalism. Typical disciplinary action for prescribing involves overprescribing, prescribing for patients without proper documentation, and prescribing without appropriate medical justification. By contrast, typical disciplinary actions for professionalism generally involve being dishonest at work, inappropriate relationships with patients, and any other sort of boundary crossing with patients or co-workers.

An investigation by the Board of Nursing, or another healthcare related board, does not necessarily mean a healthcare provider has done anything wrong, or that he or she will face discipline.

Disclosure to Your Employer: When to Wait

Typically, most investigators from the Department of Health and healthcare related boards will not disclosure their investigation of your license to your employer unless the investigator interviews your employer or co-workers as part of his or her investigation, or requests medical records or documentation from your employer. If the investigator has not disclosed the investigation to your employer, it may be best to wait to disclose until the results of the investigation are known–i.e., if the investigation is unfounded and the complaint will be dismissed, or if the healthcare board is planning on pursuing disciplinary action against your license.

Exception: Many hospital bylaws require that a healthcare provider with hospital privileges disclose the status of an investigation against the provider within a certain window of time. Be aware of any hospital bylaws or employer requirements that may require you to disclose the status of an investigation as soon as you become aware of it.

Disclosure to Your Employer: When to Disclose

If your employer has already been contacted by the Department of Health, or otherwise made aware of the investigation by someone else, I recommend disclosing, in a confidential setting, such as a closed-door office, rather than in the hallways of your clinic or hospital, the following to your direct supervisor:

  1. What the complaint was against you;
  2. What exactly is being investigated; and
  3. What the status of the investigation is.

When disclosing the details of the investigation to your employer, I recommend “being honest, and brief.” Crying while discussing an investigation with your employer, or over sharing your feelings or emotions regarding the investigation with your supervisor or co-workers is generally considered unprofessional, and could reflect poorly on you.

In Between Jobs? Read Carefully.

If you are applying for a new job while your license is under investigation, be diligent in carefully reading questions on any job application. One application may request disclosure of any “investigations” into your license, while another application may simply ask for the disclosure of any “discipline” against your license. Be sure to answer appropriately.

Having your license under investigation can be a disconcerting and difficult process, so if possible, I recommend hiring counsel to advocate for you as early as possible in any investigation into your license.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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Legal Considerations: Prescribing Medications for Friends and Family

Alex Fisher and Erin Tolbert, the creator of MidlevelU, discuss legal considerations to be mindful of when prescribing medications for friends and family. The original article and video, published on MidlevelU, can be found here. Although Erin and Alex discuss prescribing to friends and family in the context of nurse practitioners, the same advice applies to other physicians and other healthcare providers.

100% of Physicians Say They have Prescribed Medication for Friends and Family

Statistics show that prescribing to friends and family members is a common practice among health care providers. Most states do not prohibit writing prescriptions for friends and family; however states require proper documentation to accompany all prescriptions that are written. In addition, most states discourage the practice of writing prescriptions to friends and family members except in emergency situations. It is important to remember that when writing a prescription for a controlled substance, federal law mandates that this must take place in the context of a strict, traditional provider-patient relationship.

Best Practices

In addition to protecting one’s license from future discipline, proper documentation to accompany all prescriptions is an important best practice for health care providers. For example, if a provider is prescribing to someone without taking his or her vital signs or knowing what other prescriptions he or she is on, the prescription written could end up harming the patient. Something else to remember when writing prescriptions: once a provider has written an prescription, he or she has entered into a legal provider-patient relationship with that patient, and the provider could be legally liable for any repercussions of the prescription he or she wrote. For example, if the medication causes drowsiness, and the patient falls asleep while driving and hurts someone, the provider could be liable.

What are the Consequences of Writing Prescriptions to Friends and Family Without Documentation?

The consequences of writing prescriptions to friends and family without documentation can range from a reprimand, required continuing education related to documentation and/or prescribing, and in some cases, revocation of a provider’s professional license. The best way providers can protect themselves from potential discipline by his or her state Board of Nursing or Board of Medical Examiners is to properly document when writing any prescription, and to be cautious about the writing of prescriptions to friends and family.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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Administrative Law Introduction

Welcome to the Administrative Law blog. Here at Thompson Burton, our administrative law practice routinely represents health care professionals before their respective licensing boards, such as the Board of Medical Examiners and Board of Nursing. This short introductory video is aimed at explaining this practice area both to individuals seeking representation, as well as others seeking to generally understand this practice area at Thompson Burton.

 

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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Nursing Regulations and the Board of Nursing

Alex Fisher was recently asked to speak as a guest lecturer to a class of first year nursing students at Southwest Community College in Memphis, Tennessee, to discuss how nurses are regulated by the Board of NursingAlthough Alex discusses regulations and regulatory boards in the context of nursing, the same regulations apply to other health care providers, including physicians, physician assistants, and pharmacists. Alex discusses the following:

The Purpose of State Nursing Boards

Nurse Boards award licenses to L.P.N.s, R.N.s, and N.P.s, and set forth the educational curriculums and standards for nursing programs in the state. In addition, the Board interprets the statutes and rules related to nursing to determine the appropriate standards of practice, and the Board enforces these statutes and rules when they are deemed to be violated.

The Legal Discipline Process Before a Nursing Board

The Board of Nursing follows a legal process in all cases. Nurses and other healthcare providers have the opportunity to respond to a complaint made against his or her license, retain counsel and conduct their own discovery of the facts. Finally, nurses and healthcare providers have the opportunity to proceed to a contested care hearing before his or her regulatory board, if he or she so chooses.

Ways to Mitigate Potential Licensure Concerns in the Future

The best ways to mitigate potential licensure concerns are discussed herein, and explained in greater detail in the previously published three-part series, ’10 Ways to Avoid Losing your Medical License.’ Part I, Part II, and Part III can be found here.

In conclusion, the Board of Nursing follows a legal process in all cases. Regulatory boards expect healthcare providers to comply with standards of care, and the Boards will take actions to assure public safety. In order to avoid complaints against one’s license, be familiar with your state rules and regulations, and comply with best practices to avoid licensure discipline.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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Why Do Healthcare Providers Overprescribe?

11-DrugsLast month, the Tennessee Department of Health sent out letters contacting the top 50 prescribers in the state–which includes physicians as well as nurse practitioners and physician assistants–to request that these individuals justify their higher than average prescribing. While simply prescribing more than one’s peers does not de facto mean that a provider is practicing outside the standard of care, oftentimes these top prescribers raise numerous red flags in the Department of Health’s audit. This review process–which ultimately may lead to discipline for many healthcare providers across the state–raises the question: why do healthcare providers overprescribe? As with most complex issues facing the healthcare profession, the answer isn’t simple.

Healthcare Providers Overprescribe Because We Expect Them To.

We live in a culture where we as patients expect to receive a prescription when we go to a healthcare provider’s office for treatment. This expectation is systemic of a broader cultural problem where we as consumers seek an easy fix for our problems. In turn, these cultural expectations make it difficult for a healthcare provider to go against a patient’s presumptions by choosing not to write a prescription. For example, a provider may be more inclined to write a prescription for opioids when a patient complains of lower back pain rather than addressing the underlying issues, such as the patient’s weight and lifestyle choices. Healthcare providers–just like most of us–would prefer to avoid conflict, and often must walk a delicate balancing act between sound healthcare advice and perceived judgment when issues like weight and substance abuse need to be discussed.

Additionally, many patients get upset, or feel like they “aren’t getting their money’s worth” if the patient pays for an office visit and leaves the provider’s office without a prescription. Such a perception requires a cultural shift in the expectation of what physician’s role in a patient’s health should be. While a prescription may solve a problem in the short-term, long-term solutions to chronic health problems require active participation by the patient, not just prescription writing by a provider.

Healthcare Providers Overprescribe Because They Don’t Realize They Are Doing It.

Without proper documentation, it may be difficult for a healthcare provider to even realize that he or she is overprescribing. Accurate documentation tells a story, and this story should document the provider’s medical decision making in determining when to start, stop, increase, or decrease a prescription. Providers who take the time to justify their prescription writing via documentation may quickly realize that the medication he or she intends to prescribe to a patient isn’t, in fact, justifiable. By documenting properly, by reviewing notes from prior visits with patients, providers can avoid falling into the trap of simply prescribing something because it was prescribed it to a patient previously.

We need to empower our healthcare providers to treat both with and without a prescription pad, but to most importantly treat patients with their own expertise and based on their own documentation–without overwhelming expectation from patients to leave a provider’s office with a prescription in hand every time.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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Chancery Court Overturns Tennessee Board of Nursing Discipline

Chancellor Ellen Lyle of Davidson County Chancery Court reversed the disciplinary actions order by the Tennessee Board of Nursing against my client, a Tennessee registered nurse (referred to hereafter as “the RN”). Chancellor Lyle’s decision, which was issued July 24, 2015, overturned the Board of Nursing’s Amended Order, issued pursuant a hearing before the Board of Nursing last August 2014.

Chancellor Lyle’s decision, which can be found in its entirety here, reversed the Board of Nursing’s suspension of the RN’s license based on the Board’s finding that the RN was addicted to drugs or alcohol to the degree of interfering with nursing duties, and that she was unfit, incompetent, and/or unprofessional due to the use or removal of drugs from the hospital where she worked. In her reversal, Chancellor Lyle found that the only statutory violation supported by the record was that the RN was unprofessional for having in her office controlled substances that had not been documented for a patient. As such, the Chancellor reversed the suspension, but left in effect an assessment of costs of approximately $2,300 against the RN.

Chancellor Lyle found that the Board’s findings that the RN was addicted to drugs or alcohol and unfit/incompetent were unsupported by the evidence from the hearing before the Board of Nursing in August 2014. Specifically, the Board of Nursing found that the RN was unfit, incompetent, and addicted to drugs or alcohol in contradiction to the overwhelming evidence against these conclusions. This evidence included: a physician’s evaluation stating “there are no indications that [the RN] has or has had a Substance Use Disorder,” overwhelming testimony from co-workers that the RN was never impaired or intoxicated in or outside of work, and a lack of evidence that the RN ever removed narcotics without authorization from her employer. In conclusion, Chancellor Lyle succinctly stated:

“When all of the record is viewed as a whole, the outcome is that: (1) the evidence to support the Board’s decision amounts to suspicions and (2) these suspicions are rebutted and undercut by the other evidence of the record…Under these circumstances, the decision of the Board must be reversed.”

Chancellor Lyle’s decision marks a triumphant and tearful day for this RN, whose work ethic as a nurse for 35 years and nursing supervisor for over 18 years has been widely praised and sought after across the country. Her reputation was battered by the unfounded accusations against her, which escalated from a complaint by her former employer in 2012 to a full-blown hearing before the Tennessee Board of Nursing in 2014. The Board has a duty to protect the public, and ensure that unsafe nurses are not permitted to practice in Tennessee. This duty, however, does not permit the Board to discipline a licensee based on suspicions and conjectures.

It should come as a relief to this RN—and all nurses across the state of Tennessee—to know that if an unfounded complaint is levied against you, Chancellors like Chancellor Lyle are willing to stand up and ensure that the Board of Nursing does not discipline your license based on mere suspicions. Hopefully for other licensees across the state, it won’t take three years and an appeal to Chancery Court to ensure that justice occurs.

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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Sex, Drugs, Alcohol & Prescription Medicine: When Can Your Personal Life Jeopardize Your License to Practice?

Alex Fisher and Erin Tolbert, the creator of MidlevelU, discuss personal and professional boundaries for health care professionals. The original article and video, published on MidlevelU, can be found here. Although Erin and Alex discuss personal and professional boundaries in the context of nurse practitioners, the same advice applies to other health care providers.

Romantic Involvement with Patients

The most important question to ask when considering romantic involvement with a patient is “Is this a former or current patient?”. Nurse practitioners and physician assistants should never date current patients. Should you find yourself interested in a patient, first and foremost transfer their medical care to another provider in the practice before proceeding. If you do proceed, do so with caution or you could find yourself charged with sexual misconduct. This blog post from MidlevelU outlines the ins and outs of what’s allowed when it comes to romantic involvement with a former patient.

Drug and Alcohol Use

Use of substances like drugs and alcohol can carry consequences even if they don’t affect your job performance. Many employers prohibit drug use among employees, so even if use of certain substances is legal in your state and won’t affect your licensure status, it could leave you unemployed. Nurse practitioners and physician assistants working unconventional hours need to be careful when it comes to alcohol consumption. Avoid drinking before the night shift, even if you have an event to attend before clocking in.

Prescription Drug Use

Chronic use of medications that may impair performance is looked upon unfavorably by employers and licensing boards. The best way for healthcare providers to deal with issues like chronic pain is to pursue alternative treatment methods. If you are taking prescription medications, consistency is key. Make sure you are taking your medications as prescribed. Start new prescriptions that may have detrimental side effects when you have a few days off work so you know how they will affect you. Don’t show up impaired at work or you could lose your license, prescription or not.

 

Alex Scarbrough Fisher

Alex Scarbrough Fisher is an associate attorney at Thompson Burton PLLC. Her practice area focuses on litigation and administrative law. Alex’s administrative law practice’s emphasis is in health care related boards, including the Tennessee Board of Medical Examiners and the Tennessee Board of Nursing.

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