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In A Major Shift, Medicare Wants Power to Ban Harmful Prescribers

Action follows ProPublica’s investigative series detailing inappropriate and wasteful prescribing, fraud in the nation’s biggest prescription drug program.

Medicare plans to arm itself with broad new powers to better control — and potentially ban — doctors engaged in fraudulent or harmful prescribing, following a series of articles by ProPublica detailing lax oversight in its drug program.

The U.S. Centers for Medicare and Medicaid Services (CMS) described the effort late Monday in what’s known as a proposed rule, the standard process by which federal agencies make significant changes.

Two of the changes mark a dramatic departure for the agency, which historically has given much higher priority to making medications easily accessible to seniors and the disabled than to weeding out dangerous providers.

For the first time, the agency would have the authority to kick out physicians and other providers who engage in abusive prescribing. It could also take such action if providers’ licenses have been suspended or revoked by state regulators or if they were restricted from prescribing painkillers and other controlled substances.   

And the agency will tighten a loophole that has allowed doctors to prescribe to patients in the drug program, known as Part D, even when they were not officially enrolled with Medicare. Under the new rules, doctors and other providers must formally enroll if they want to write prescriptions to the 36 million people in Part D. This requires them to verify their credentials and disclose professional discipline and criminal history.

Currently, Medicare and the private insurers that run Part D know little about those writing the prescriptions — even those whose yearly tallies cost millions of dollars or who prescribe high volumes of inappropriate drugs.  ProPublica found that some of the doctors had been criminally charged or convicted, had lost medical licenses or had been terminated from state Medicaid programs serving the poor.

The changes would take effect Jan. 1, 2015. As part of the process, CMS will accept public comments until March 7 and could revise the proposals based on the feedback. Undoubtedly, the new rules would require some patients to change doctors — or force some doctors to apply to be part of Medicare.

Several of the proposed changes address failings detailed by ProPublica’s investigation last year.

The series showed that Medicare’s failure to keep watch over Part D has enabled doctors to prescribe massive quantities of inappropriate medications, has wasted billions on needlessly expensive drugs and has exposed the program to rampant fraud. Part D cost taxpayers $62 billion in 2012.

These problems stem largely from Medicare’s failure to rigorously analyze what drugs, and how many of them, physicians are prescribing to Part D patients.

Using the Freedom of Information Act, ProPublica requested and obtained data on the drugs prescribed by every provider in the Part D program for five years —1.2 billion prescriptions in 2011 alone.

Reporters analyzed the data to spot doctors who prescribed in very different ways than their peers — for example, by choosing drugs that were risky or costly, or in ways that suggested fraud.

In interviews, many of the doctors said they had never been contacted by Medicare even though they agreed that their patterns were worthy of scrutiny.

As part of its reporting, ProPublica sought the advice of experts on how to tighten Medicare’s oversight of the program. Among Medicare’s planned changes are several the experts suggested. But others were not addressed in the proposal.

Medicare, for example, does not detail whether officials now plan to routinely scour their data for providers with suspicious prescribing patterns and, when they find them, what they’ll do.

The proposed rule also does not include other suggestions such as requiring diagnosis codes on prescriptions to assess their appropriateness or requiring private insurers in Part D to report suspected fraud, waste and abuse to Medicare’s fraud contractor. Such sharing is now voluntary.

Among the changes Medicare is proposing:

  • Giving its outside fraud contractor the ability to more easily investigate suspicions of fraud. Currently, the contractor cannot directly access patient medical charts to assess whether the patient actually saw the doctor or had a condition that warranted the medication.  The contractor must go back to the insurers, which then request the records from doctors or pharmacies.

    Under the rule change, the contractor would be given the power to access the records directly. The inspector general of the U.S. Department of Health and Human Services has repeatedly pressed Medicare to make this change.

  • Whittling down its list of “protected drug classes,” vital drugs for which insurers cannot impose restrictions on use. The agency wants to remove antidepressants and immunosuppressant drugs from this list, giving insurers more latitude to require patients receive prior approval before receiving certain brand-name medicines.

The agency also said it may remove protection from antipsychotics, which can be inappropriate for seniors with dementia, after 2015.

In a blog post, Jon Blum, the principal deputy administrator for CMS, said his agency is serious about fighting fraud and abuse in Part D. Since 2011, he wrote, the agency has reduced the percentage of Part D patients who are potentially overusing painkillers and acetaminophen, which can cause severe liver damage in high doses.

“CMS strives to ensure that beneficiaries have the medications they need while at the same time is being vigilant to safeguard the program from inappropriate use,” Blum wrote.

But when ProPublica looked at the highest prescribers of narcotics in Part D, it found that many had faced criminal complaints, action by their state medical boards or other accusations of misconduct.

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