Physicians may often suspect providers they know or do business with may be involved in arrangements that do not comply with the law. This is an area in which many physicians struggle to understand and do the right thing in accordance with the law. Being proactive and seeking legal counsel can make the difference between physicians continuing to practice medicine and having their license suspended, even if they haven’t personally done anything wrong. Here are a couple illustrative examples.
A client contacted me with concerns about a practice for which he had been providing services one day per week as a contractor for several years. He was paid a percentage of his own collections and received weekly statements of the work he had performed and the amounts collected. He very much liked the practice owner and thought him a good provider. My client started to hear rumors that the owner’s license to practice had been suspended and that there may have been improper billing by the owner under other providers’ national provider identifier (NPI) numbers. My client was torn--he didn’t want to accuse his longtime colleague without more information but also didn’t want to jeopardize his job. My client attempted to question the owner about the rumors in person and via email/text. He received no solid answers but was reassured it was a “misunderstanding” and the truth “would come to light.” These responses did little to reassure my client.
I convinced my client that immediate action was needed. He provided notice of termination and requested a summary of all billing performed in his name and under his NPI. He also reminded the practice owner that his NPI, Drug Enforcement Administration (DEA) registration number, name, and other identifying information could no longer be used by the practice. He took steps to make sure any authorizations were terminated. Several days later, my client received a visit from government investigators asking questions about his former boss. Although caught off guard, my client answered all questions and was able to relay and prove his disassociation with the practice. The agents were impressed with his proactive decisions despite having no actual knowledge of wrongdoing. My client agreed to be cooperative, and the visit ended. At this time, we have not yet heard anything further.
In sharp contrast to the above situation, last year I dealt with a physician who learned that parties with whom he worked at a clinic (the “3rdParties”) had been investigated and indicted related to wrongful use of a physician’s DEA number. Many months after becoming aware of the 3rdparties’ conduct, he finally left the clinic to focus on his own practice. He later decided to hire the same 3rdparties to work for him in his own private practice.
Unsurprisingly, he soon was visited by the DEA who questioned why he had allowed the 3rdparties to use his DEA number after he had left the clinic. Although he had no knowledge of the wrongful use of his DEA number, his failure to terminate his DEA registration at the site and continued affiliation with the 3rdparties led him down a road of suspicion. In the end, he faced suspension of his medical license and is still facing the impact of his poor decisions.
Physicians often contact me with concerns about what they see. Sometimes they have concerns about how their own NPI/DEA numbers are used by clinics where they work. Often, they feel compelled by an employer to order testing or make referrals or otherwise suffer financial penalties and threats for failure to do so. Just today, a physician found out that injections in his practice were being done in contravention of packaging instructions / in an unregulated manner.
Review every situation that arises before any decision is made. It’s important to remember that in some cases physicians may simply be mistaken. Asking the right questions can resolve the issue. If not, take immediate action.
Precautions all physicians should take:
- Do not allow your NPI, name or DEA number to be used improperly. Be vigilant and seek out records related to all use of such numbers.
- Terminate the use of your NPI/DEA by an organization when you terminate employment/engagement.
- Do not sign-off on documents you have not reviewed or do not understand.
- Terminate any mid-level supervision arrangement with the state, if applicable, when you leave an organization.
- Never accept cash or gifts from third parties without questioning legitimacy.
- Question activities in which your employer/colleagues are engaged if you believe they are illegal or non-compliant. Check with counsel in advance for certainty.
- Be mindful of the company you keep. Association with those who engage in wrongful conduct can impact you and potentially open you to investigation.
- Consider terminating any arrangement for which you have evidence is illegal/non-compliant and puts you at risk.
Ericka L. Adler is a partner at the firm Roetzel & Andress. Here primary practice focus is in the areas of regulatory and transactional healthcare law.