Increasingly, the United States government is focusing on its own data to identify potential health care pr¬osecutions. One need look no further than recent proclamations by U.S. Attorney General Jeff Sessions.
In a recent speech, he noted that – in response to the opioid epidemic afflicting America – the Department of Justice (DOJ) has created a new Opioid Fraud and Abuse Detection Unit. He described this unit as being able to “tell us important information – like who is prescribing the most drugs, who is dispensing the most drugs, and whose patients are dying of overdoses.”1 It should come to no surprise to most sophisticated healthcare companies that DOJ is mining government data, from the Centers for Medicare and Medicaid Services (CMS), TRICARE, and other federal agencies, to identify possible targets for prosecutions.
The use of data mining by the government is commendable. As former federal prosecutors, we understand first-hand the importance of this tool in deciding where to allocate the government’s limited investigative and prosecutorial resources. In fact, during our tenures as the U.S. Attorney and the lead Assistant U.S. Attorney tackling healthcare fraud, respectively, in one of the busiest judicial districts in the country, we routinely used data to identify potential criminal and civil targets. We pioneered the use of data metrics in healthcare prosecutions – sometimes targeting entire industries on the basis of our analysis. So, we acutely understand data’s importance. But, just as importantly, we understand data’s limitations.
For example, some physicians clearly stand out in prescribing opioids. Many of these physicians are “outliers,” however, for perfectly justifiable reasons. So, simply looking at "who is prescribing the most drugs,” without delving deeper, is essentially meaningless. It would be little surprise, for example, that pain management doctors would be more likely to prescribe opioids than, say, podiatrists. Likewise, physicians in geographic areas with higher elderly populations likely would prescribe opioids at a higher rate than physicians in areas with younger populations.
Given the enormity of the stakes involved, we recommend that prosecutors be particularly discerning when analyzing data to ferret out abusive opioid prescribers. Given the wealth of data at its disposal, the government should use all available metrics, rather than simply identifying the “outliers” who are prescribing opioids at the highest rates. And even after the most sophisticated analytical tools have been employed, the government should look beyond the numbers to determine whether there are justifiable reasons for a provider’s unusual prescription patterns.
For practitioners, we recommend a simple adage: An ounce of prevention is worth a pound of cure. Practitioners would be well-served by periodically (say, quarterly) reviewing their data to determine whether “red flags” exist. The same red flag that the government might use to identify a target for investigation or prosecution should alert a provider that a potential problem exists.
Given this backdrop, we recommend that practitioners be able to explain upticks in prescription habits. If a practitioner’s data suggests that she has suddenly started using opioids as a primary pain management technique, for example, we suggest a practitioner be able to explain this paradigm change. Likewise, if a practitioner begins to order a new battery of diagnostic tests, we recommend that the practitioner review his diagnostic testing history and be able to explain the variance.
As with most things, the devil is in the details for data analysis. While data mining cannot conclusively delineate between well-meaning and abusive prescription practices, healthcare providers should analyze their own data regularly. Doing so, and being prepared to answer tough questions from regulators, is more important than ever.
A. Lee Bentley III and Jason Mehta are partners in the Government Enforcement and Investigations Practice Group at Bradley Arant Boult Cummings LLP in Tampa, Fla. Mr. Bentley is the former U.S. Attorney for the Middle District of Florida. During his tenure as the U.S. Attorney from 2014 to 2017, his office recovered more than $1.2 billion in fines and penalties from healthcare providers and other regulated providers. He can be reached at lbentley@bradley.com. Mr. Mehta was an Assistant U.S. Attorney for the Middle District of Florida, responsible for more than a quarter of a billion dollars in financial recoveries. He can be reached at jmehta@bradley.com.
1 See Attorney General Sessions Delivers Remarks on the Department of Justice’s Efforts to Combat Drug Trafficking and End the Opioid Crisis, available at https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-department-justice-s-efforts-combat-drug (last accessed February 10, 2018).