Recently, we represented a physician who was the subject of two (2) licensing investigations by the Boards of Medicine in different states, and a separate criminal investigation – all stemming from prescriptions allegedly written by this physician for a “friend” the physician had known for decades.  Although we were successful in helping this physician be exonerated, he had to endure the time, expense, and anxiety associated with multiple investigations by criminal and licensing authorities. 

The problem of prescription drug abuse is a growing national problem, and one that can have serious consequences for any physician that may be implicated.   Earlier this month, the Centers for Medicare and Medicaid Services (“CMS”) announced proposed new rules to fight fraud and abuse in the federal Medicare Advantage and Part D prescription drug program.  One of the goals of these proposed new rules is to identify Part D enrollees that have “potential opioid or acetaminophen over utilization issues that indicate the need to implement appropriate controls on these drugs for the identified beneficiaries.” 

Further, under the proposed new rules, CMS would use data analysis to identify physicians and pharmacies that may be committing fraud or otherwise engaged in abusive activities with respect to prescription drugs.  And among the salient provisions of these proposed new rules, physicians that prescribe Part D drugs would be required to enroll in Medicare, and CMS would have the authority to revoke a physician’s Medicare enrollment under the following circumstances:

  • If CMS determines that the physician has a pattern or practice of prescribing Part D drugs that is abusive and represents a threat to the health and safety of Medicare beneficiaries or otherwise fails to meet Medicare requirements; or

  • If the physician’s DEA Certificate of Registration is suspended or revoked; or

  • If the applicable licensing or administrative body for any state in which the physician practices has suspended or revoked such physician’s ability to prescribe drugs.

In addition, one of the proposed new rules would allow CMS, its anti-fraud contractors, and other oversight agencies to obtain information directly from pharmacies, pharmacy benefit managers, and other entities that contract or subcontract with Part D sponsors to administer the Medicare prescription drug benefit program.    

Therefore, while the physician we recently represented was completely cleared of all wrongdoing, his case, together with CMS’s proposed new rules, should serve as a reminder to physicians generally that CMS, law enforcement and licensing boards are continuing or increasing their scrutiny of physicians’ practice patterns when it comes to prescription drugs. 

CMS will accept comments on the proposed new rules until March 7, 2014, before issuing  a final version of these rules.