Tag Archives: department of health and human services

ACA: Complication for Websites

On May 18, 2016, the Department of Health and Human Services (“HHS”) issued a final rule implementing Section 1557 of the Patient Protection and Affordable Care Act (ACA), which prohibits discrimination on the grounds of race, color, national origin, sex, age or disability in certain health programs and activities. Effective July 18, 2016, the final rule, “Nondiscrimination in Health Programs and Activities,” required entities covered by the rule to comply with certain accessibility requirements applicable to their use of technology in the provision of services.

See also: AI: The Next Stage in Healthcare  

The rule applies to: (i) to every health program or activity, any part of which receives federal financial assistance provided or made available by HHS; (ii) health insurance plans and marketplaces; and (iii) HHS itself. The rule defines “HHS financial assistance” broadly, to include almost all types of financial benefit transfers, among them grants, loans, credits, subsidies or transfers of real or personal property (but excludes Medicare Part B payments). Key points of the rule include the following:

First, the rule requires entities covered by it to make all programs and activities provided through electronic and information technology (e.g., a website) accessible for individuals with disabilities, unless doing so would impose undue financial or administrative burden. In addition, such entities must provide appropriate auxiliary aids and services when necessary to ensure an equal opportunity for persons with disabilities to participate in and benefit from the entity’s health programs or activities. Auxiliary aids and services include qualified sign language interpreters, captioning, large print materials, screen reader software, text telephones and video remote interpreting services. In short, entities covered by the rule must take appropriate steps to ensure that communications with individual with disabilities are as effective as communications with others, in accordance with Title II of the Americans with Disabilities Act of 1990 and related regulations.

Second, entities covered by the rule must take reasonable steps to provide meaningful access to individuals with limited English proficiency eligible to be served or likely to be encountered in their health programs and activities. This includes providing language assistance services, such as oral language assistance or written translation, free of charge and in a timely manner.

Third, entities covered by the rule must comply with certain procedural requirements. Specifically, the rule requires applicable entities with 15 or more employees to have a grievance procedure, to identify at least one individual accountable for coordinating the regulated entity’s compliance and to have a written process in place for handling grievances.

In addition, entities covered by the rule that operate websites must post on the website notices of nondiscrimination and taglines that alert individuals with limited English proficiency to the availability of language assistance services. Such taglines must be posted in at least the top 15 non-English languages spoken in the state in which the entity is located or does business.

See also: Digital Insurance, Anyone?  

For healthcare providers operating in the digital health industry as well as for software and other technology vendors working with health care providers, the rule may create a number of challenges. Website accessibility has likewise been the focus of increasing litigation, and a number of high-profile settlements have emphasized the potential risks entities may face by failing to address technology-based accessibility issues. Providers would be well advised to review their websites and other customer-facing technology with counsel to determine the applicability of the rule to their activities, as well as any broader accessibility considerations and exposure.

This article is from Jones Day Digital Health Law Update.  For more like this see: http://www.jonesday.com/digital-health-law-update-vol-ii-issue-4-08-08-2016/.

Transparent Reinsurance for Health

Transparent reinsurance programs could emerge as significant opportunities for healthcare providers, issuers, reinsurers, technology innovators and regulators to address health insurance.

The message is clear. Having to factor in higher costs associated with new entrants to the healthcare system gives insurance firms license to charge higher rates. If these new people were put into a reinsurance pot for three to five years with costs spread over all insurers, no one insurer would be unnecessarily burdened. After this period, costs for these entrants could be reexamined and a decision could be made on how to proceed with them, depending upon the deviation from the remaining population.

Several factors are coming into play. 

United Health Group indicates it will be leaving all but a few of the 34 states where it is offering health insurance under Obamacare.

A fresh Blue Cross Blue Shield study finds recent Obamacare entrants have higher rates of specific illnesses and used more medical services than early entrants. “Medical costs of care for the new individual market members were, on average, 19% higher than employer-based group members in 2014 and 22% higher in 2015. For example, the average monthly medical spending per member was $559 for individual enrollees versus $457 for group members in 2015,” the study found.

What emerges in conversations with economists, regulators and healthcare actuaries is a sense that properly designed, fair and transparent reinsurance could—and would—advance industry and public policy goals to continue insurance for all at affordable prices. This approach would represent tangible improvements over inefficient, incumbent systems. Information would be used by insurers and reinsurers, providers and regulators and, crucially, insureds to establish best performances for healthcare outcomes and expenses. Virtually everyone knows that state or regional reinsurance would have to be mandated, as voluntary systems could be gamed.

“The implementation of new policies, the availability of research funding, payment reform and consumer- and patient-led efforts to improve healthcare together have created an environment suitable for the successful implementation of patient-reported outcome measures in clinical practice,” fresh research in Health Affairs also indicates.

Risk analysis technologies could help issuers, reinsurers, healthcare institutions and citizens rein in the healthcare system’s enormous costs. Earlier this year, the Congressional Budget Office and Joint Committee on Taxation projected that, “in 2016, the federal subsidies, taxes and penalties associated with health insurance coverage will result in a net subsidy from the federal government of $660 billion, or 3.6% of gross domestic product (GDP). That amount is projected to rise at an average annual rate of 5.4%, reaching $1.1 trillion (or 4.1% of GDP) in 2026. For the entire 2017–2026 period, the projected net subsidy is $8.9 trillion.”

CBO/JCT published this stunning projection amid consensus that $750 billion to $1 trillion of wasted spending occurs in healthcare in the U.S. “Approximately one in three health care dollars is waste,” Consumer Reports says.

Key metrics should focus on estimates of risk using demographics and diagnoses; risk model descriptions; calculation of plan average actuarial risk; user-specified risk revealing and detailing information; drill-down capabilities clarifying research; monitoring and control; and calculation and comparison measures to address reinsurance validation.

Several major refinements yielding and relying upon granular, risk-revealing data and metrics would support more efficient reinsurance. All would, and could, update reinsurance information and address customer experience, trust and privacy concerns.

As the industry has noted, ledger technologies could play fundamental roles as blockchains. Indeed, blockchain technologies are just now being introduced in the U.K. to confirm counter party obligations for homeowners’ insurance.

“Advanced analytics are the key,” remarked John Wisniewski, associate vice president of actuary services at UPMC Health Plan. “Predictive capability that looks at the likelihood a patient admission may be coming is the information that we can give to doctors to deal with the matter. … Whoever develops algorithms for people who will be at risk—so providers can develop plans to mitigate risk—will create value for issuers, providers and members alike.”

Available technologies support the connecting of risk assessments with incentives for risk information.

Michael Erlanger, the founder and managing principal of Marketcore, said, “We cannot know what we cannot see. We cannot see what we cannot measure. These available technologies provide clarity for more efficient health insurance and reinsurance.”

Context: Three Rs: Reinsurance, Risk Corridors and Risk Adjustment

When Congress enacted the ACA, the legislation created reinsurance and risk corridors through 2016 and established risk adjustment transfer as a permanent element of health insurance. These three Rs—reinsurance, risk corridors and risk adjustment—were designed to moderate insurance industry risks, making the transition to ACA coverage and responsibilities. The Centers for Medicare and Medicaid Services (CMS) within the Department of Health and Human Services (HHS) administers the programs. All address adverse selection—that is, instances when insurers experience higher probabilities of losses due to risks not factored in at the times policies are issued. All also address risk selection, or industry preferences to insure healthier individuals and to avoid less healthy ones.

With the expiration of ACA reinsurance and risk corridors, along with mandatory reporting requirements this December, healthcare providers, issuers, reinsurers, technology innovators and regulators can now evaluate their futures, separate from CMS reporting.

Virtually all sources commend reinsurance and risk adjustment transfer as consistently as they deride risk corridors. Reinsurance has paid out well, while risk corridors have not. Risk adjustment transfer remains squarely with CMS. 

ACA numbers

While House Republican initiatives try and fail to repeal the ACA, and some news programs and pundits say it is unsustainable, approximately 20 million subscribers are enrolled in Obamacare: with 12.7 million as marketplace insureds, with others through Medicaid and as young adults on parent plans. President Obama, in March, remarked: “Last summer we learned that, for the first time ever, America’s uninsured rate has fallen below 10%. This is the lowest rate of uninsured that we’ve seen since we started keeping these records.” Subscription ratios are off the charts. Premium increases have been modest, approximately 6% for 2016, experts find. “I see no risk to the fundamental stability of the exchanges,” MIT economist Jonathan Gruber observed, noting “a big enough market for many insurers to remain in the fold.”

Transitional Reinsurance 2014-16: Vehicle for Innovation 

One of the great benefits of the ACA is eliminating pre-existing conditions and premium or coverage variables based on individual underwriting across the board. Citizens are no longer excluded from receiving adequate healthcare, whether directly or indirectly through high premiums. Prices for various plan designs go up as coverage benefits increase and as co-pays and deductibles decrease, but the relative prices of the various plans are calculated to be actuarially equivalent.

To help issuers make the transition from an era when they prided themselves on reducing or eliminating less healthy lives from the insureds they covered, to an era where all insureds are offered similar ratings, the ACA introduced reinsurance and risk corridors to cover the first three years (2014 through 2016), in addition to risk adjustment transfer, which will remain in force.

The concept is relatively simple: Require all issuers to charge a flat per-dollar, per-month, per-“qualified” insured and create a pot of money with these “reinsurance premiums” that reimburses issuers for excess claims on unhealthy lives. Issuers would be reimbursed based on established terms outlined in the ACA.

Reinsurance reimburses issuers for individual claims in excess of the attachment point, up to a limit where existing reinsurance coverage would kick in. Individuals involved with these large claims may or may not be identified in advance as high-risk. The reimbursed claim may be an acute (non-chronic) condition or an accident. The individual may otherwise be low-risk.

The important aspect is that all health insurance issuers and self-insured plans contribute. By spreading the cost over a large number of individuals, the cost per individual of this reinsurance program is small to negligible. Non-grandfathered individual market plans are eligible for payments. A state can operate a reinsurance program, or CMS does on its behalf through this year.

As a backstop, the federal government put some money in the pot through 2016—just in case the pot proved inadequate to provide full reimbursement to the issuers. In a worst-case scenario, the sum of the reinsurance premiums and the federal contribution could still be inadequate, in which case the coinsurance refund rate would be set at less than 100%.

As it turned out, 2014 reinsurance premiums proved to be more than adequate, so the refund rate was 100%, and the excess funds in the pot after reimbursement were set aside and added to the pot for 2015, just in case that proves inadequate.

Reinsurance functions on this timetable through this year:

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CMS transferred approximately $7.9 billion among 437 issuers—or 100% of filed claims for 2014, as claims were lower than expected— and it has yet to release 2015 payments. The results for 2015 are coming this summer.

From the outset, states could, and would, elect to continue reinsurance, the CMS contemplated. In 2012, the CMS indicated that “states are not prohibited from continuing a reinsurance program but may not use reinsurance contribution funds collected under the reinsurance program in calendar years 2014 through 2016 to fund the program in years after 2018.”

Subsequent clarification in 2013 did not disturb state discretion. Current regulation specifies that “a state must ensure that the applicable reinsurance entity completes all reinsurance-related activities for benefit years 2014 through 2016 and any activities required to be undertaken in subsequent periods.”

One course of action going forward from 2017 and varying from state-to-state could be mandatory reinsurance enacted through state laws. Healthcare providers, issuers, reinsurers, regulators and legislators could define the health reinsurance best suited to each state’s citizens.

Reinsurers could design and manage administration of these programs possibly at a percentage of premium cost that is less than what is charged by the federal government today. While these reinsurance programs would be mandated, they could include a component of private reinsurance. For example, reinsurers could guarantee the adequacy of per-month reinsurance premiums with provisos that if these actuarially calculated rates turned out to be inadequate in any given year or month, there will be an adjustment to account for the loss in the following year. Conversely, if those rates turn out to be too high, 90% or more is set aside in an account for use in the following year. This way, reinsurers could participate by providing a private sourced solution to adverse claims.

Risk Corridors

Risk corridors apply to issuers with Qualified Health Plans (exchange certified plans) and facilitate transfer payments. The CMS noted: “Issuers whose premiums exceed claims and other costs by more than a certain amount pay into the program, and insurers whose claims exceed premiums by a certain amount receive payments for their shortfall.” Technically, “risk corridors mean any payment adjustment system based on the ratio of allowable costs of a plan to the plan’s target amount,” as the CMS designated.

Issuer claims of $2.87 billion exceeded contributions, so the CMS transferred $362 million among issuers; that is, a 12.6% proration or a $2.5 billion shortfall in 2014.

Risk corridors are politically contentious. Sen. Marco Rubio (R-Florida) likened risk corridors to bailouts. The HHS acknowledged it will “explore other sources of funding for risk corridors payments, subject to the availability of appropriations… includ[ing] working with Congress on the necessary funding for outstanding risk corridors payments.” And, a knowledgeable analyst, Dr. David Blumenthal, noted that risk corridors are not bailouts.

Going forward, evaluations of risk corridors will demand due diligence. Several health exchanges failed from any number of factors—from too little capital for growth experienced, inadequate pricing, mismanagement or risk corridor payments.

Whether innovation can yield effective risk corridors or whether risk corridors will simply fade out as transitional 2014-2016 regulation will depend on institutional and industry participants. Risk corridors did not score unalloyed approbation among sources.

Risk Adjustment: Permanent Element of ACA

Risk adjustment remains in force and impels issuers with healthier enrollees to offset some costs of issuers with sicker ones in specific states and markets and of markets as a means toward promoting affordable health care choices by discouraging cherry picking healthier enrollees.

The HHS transferred approximately $4.6 billion for risk adjustment among issuers for 2014.

At first blush, one might postulate that risk adjustment does the job and that reinsurance and risk corridors could just as reasonably fade out. There is some logic to that argument.

On the other hand, state or regional level reinsurance could make up for risk adjustment shortfalls. In some instances, risk adjustment seems to be less friendly to issuers that take on higher-risk individuals, rather than rewarding high tech issuers and providers with back office capabilities coding claims in such a way as to tactically game risk adjustment.

Evaluating and cultivating these opportunities are timely amid the uncertainties of the presidential and congressional elections that may yield executive and legislative lawmakers intent on undoing ACA provisions, starting with risk corridors. Such legislation could produce losses for issuers and reinsurers.

Nelson A. Rockefeller Precedent

In 1954, then-Undersecretary of Health Education and Welfare Nelson A. Rockefeller proposed reinsurance as an incentive for insurers to offer more health insurance. S 3114, A Bill to Improve the Public Health by Encouraging More Extensive Use of the Voluntary Prepayment Method in the Provision of Personal Health Services, emerged in the first Eisenhower administration to enact a federally funded health reinsurance pool. Rockefeller intended the reinsurance as a means toward an end, what would eventually be dubbed a “third way” among proponents of national health insurance. President Truman and organized labor championed the approach into the mid-’50s. So did the Chamber of Commerce and congressional Republican adversaries of the New Deal and Fair Deal, who were chaffing to undo Social Security as quickly as they could. The American Medical Association also supported this third way because it opposed federal healthcare reinsurance as an opening wedge for socialized medicine. Despite limiting risk and offering new products, insurers demurred because of comfort zones with state regulators and trepidation about a federal role.

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Nelson A. Rockefeller, then-undersecretary of the Department of Health, Education and Welfare, presenting a federally funded health reinsurance plan, 1954.
Source: Department of Health Education and Welfare—now Health and Human Services

Rockefeller’s health reinsurance plan would “achieve a better understanding of the nation’s medical care problem, of the techniques for meeting it through voluntary means, and of the actuarial risks involved,” HEW Secretary Oveta Culp Hobby testified to a Senate subcommittee in 1954.

Rockefeller’s health reinsurance plan did not make it through the House. Organized labor decried it as too little, the AMA said it was too intrusive. Upon hearing news of the House vote, a frustrated Dwight Eisenhower blistered to reporters, “The people that voted against this bill just don’t understand what are the facts of American life,” according to Cary Reich in The Life of Nelson A. Rockefeller 1908-1958. “Ingenuity was no match for inertia,” Rockefeller biographer Richard Norton Smith remarked of industry and labor interests in those hard-wired, central-switched, mainframe times.

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“’It’s déjà vu all over again’ like Yogi Berra,” said one insurance commissioner immersed in the ACA on hearing Ike’s quote.

Source: Yogi Berra Museum & Learning Center

The idea of national health insurance went nowhere despite initiatives by Sen. Edward M. Kennedy (D-Massachusetts) in the late ’70s and President Bill and First Lady Hillary Clinton roughly 20 years ago, until Congress legislated Obamacare.

Innovative, Transparent Technologies Can Deliver Results

Nowadays, more than 60 years after Rockefeller’s attempt, innovative information technologies can get beyond these legislative and regulatory hurdles. Much of the data and networking is at hand. Enrollee actuarial risks, coverage actuarial values, utilization, local area costs of business and cost-sharing impacts on utilization are knowable in current systems. Broadband deployment and information technology innovations drive customer acquisition and information management costs ever lower each succeeding day. Long-term efficiencies for reinsurers, insurers, carriers, regulators, technology innovators and state regulators await evaluation and development.

Reinsurance Going Forward From 2017

So, if state reinsurance programs can provide benefits, what should they look like, and how should they be delivered?

For technology innovators—such as GoogleMicrosoftOverstockZebra or CoverHound—these opportunities with reinsurance would apply their expertise in search, processing and matching technologies to crucial billion-dollar markets and functions. The innovators hope to achieve successes more readily than has occurred through retail beachheads in motor vehicle and travel insurance and credit cards and mortgages. One observer noted that some of those retail initiatives faltered due to customer experience shortfalls and trust and privacy concerns. Another points out that insurers view Amazon, Apple and Netflix as setting new standards for customer experiences and expectations that insurers will increasingly have to match or supersede. A news report indicated that Nationwide already pairs customer management data with predictive analytics to enhance retention.

Reinsurers including Berkshire Hathaway, Munich Reinsurance Company, Swiss Reinsurance Company Limited and Maiden Holdings could rationalize risks and boost earnings while providing a wealth of risk management information, perhaps on a proprietary basis.

For issuers, state-of-the-art transparent solutions improve the current system by enabling issuers to offer more products and services and becalm more ferocious industry adversaries while lowering risks and extending markets. Smaller, nimbler issuers may provide more innovative solutions and gain market share by providing the dual objectives of better health outcomes with lower costs.

For regulators, innovative, timely information sustains the indispensability of state regulators ensuring financial soundness and legal compliance—while allowing innovators to upgrade marketplace and regulatory systems, key regulatory goals that Iowa’s insurance commissioner, Nick Gerhart, pointed out recently. Commissioner Gerhart envisions regulators as orchestra conductors, acknowledging that most insurance regulatory entities are woefully understaffed to design or operate such reinsurance programs themselves, but they will, and they can lead if the participants can provide turnkey capabilities.

Think of health insurance and reinsurance as generational opportunities for significant innovation rather like the Internet and email. When the Department of Defense permitted the Internet and email to evolve to civilian markets from military capabilities in the 1980s, the DOD initially approached the U.S. Postal Service. Senior Post Office management said it welcomed the opportunity to support email: All users need do is email correspondence to recipients’ local post offices by nine p.m. for printing, enveloping, sorting and letter-carrier delivery the following day.

Similarly, considerable opportunities chart innovative pathways for state and regional health reinsurance for 2017 and beyond.

One path, emulating the post office in the ’80s, keeps on coding and bemoans a zero sum; it would allow the existing programs to fade away and will respond to whatever the president and Congress might do.

Another path lumps issuer health reinsurance as an incumbent reinsurer service without addressing the sustainability of state health exchanges or, indeed, any private health insurers in the absences of risk spreading with readily available information technologies.

The approach suggested here—mandated state health reinsurance—innovates to build sustainable futures. Enabling technologies empower all stakeholders to advance private and public interests through industry solutions advancing affordable healthcare.

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How to Help Reverse the Opioid Epidemic

Across the U.S., the number of reported events exemplifying the opioid and heroin epidemics continues to skyrocket. U.S. Government Publishing Office data shows that the usage of both prescribed stimulants and prescribed opiates increased by a factor of 19 in just two decades since 1994(1). On Dec. 18, 2015, the U.S. Centers for Disease Control and Prevention (CDC) released a report showing drug overdose deaths reached record highs in 2014, fueled in large part by the abuse of narcotic painkillers and heroin. In 2014, more than 47,000 Americans died from drug overdoses, an increase of more than 14% from 2013. About 61% of those deaths involved the use of opioids. From 2000 to 2014, the report noted that nearly half a million people have died from overdoses in the U.S. In 2014, there were approximately one and a half times more drug overdose deaths than deaths from motor vehicle crashes!(2)

A very worrisome statistic and trend…

For workers’ compensation insurers, opioid use in treating chronic pain has also exploded over the past two decades. Although there appear to be some signs that opioid use is finally cresting, insurers still have a long way to go in helping to ensure that physicians and the injured workers they treat are fully educated on the pros and cons of using opioids with various types of injuries and pain. As the Risk & Insurance article “Paying for Detox – The Opioid Epidemic Is Addressed by Detoxification Programs” notes, some workers’ compensation insurers have been funding tapering and detoxification programs to help dependent or addicted patients wean themselves off the very medications that were designed to ease their pain(3). Unfortunately, recidivism is common, with experts noting that it can take several attempts to wean someone off narcotics.

This article will highlight some of the challenges in front of us and share some innovative ideas on potential ways to help prevent opioid dependency and addiction before the habits requiring tapering and detoxification programs are ever formed.

The Challenge in Front of Us

In January 2011, USA Today shared a powerful story about David Fridovich, a three-star Green Beret general who has become an advocate for warning soldiers about the epidemic of chronic pain and the use of narcotic pain relievers sweeping through the U.S. military(4). Much like others across the country who have suffered a severe back injury, the general began taking narcotics for chronic pain in 2006. Over time, the general became addicted to narcotics. During one 24-hour period the general took five dozen pain pills. After going through a detoxification program, the general has been helping other soldiers avoid the complications he faced because he was unaware of the addictive nature of the pills he was taking.

In a recent book about the opioid and heroin epidemic in the U.S., Dream Land author Sam Quinones shares his research on the history of how we ended up where we are today. From a workers’ compensation perspective, the author shared a story about a prison guard who had injured his back during a fight with an inmate. The doctor, who took the guard off of work for six months, also prescribed opioids to be taken twice a day for 30 days. After becoming severely addicted, the guard said, “It really humbles you. You think you’re doing stuff the way it’s supposed to be done. You’re trusting the doctor. After a while, you realize this isn’t right, but there really isn’t anything you can do about it. You’re stuck. You’re addicted.”

Both stories illustrate how the use of painkillers can lead to dependency and addiction without warning. They also highlight the critical role prescribing physicians play in educating patients about the warning signs and addictive nature of opioid prescriptions. As part of this education process, prescribing guidelines and analytics can play an important role in driving better outcomes.

Opioid Prescribing Guidelines

For workers’ compensation insurers, it is critical to understand the opioid prescribing guidelines that underlie the way physicians are treating injured workers. The more the insurers can help educate physicians on best practices, the better off insurance companies may be in helping to prevent any issues that may arise because of unnecessary or excessive opioid prescribing.

The CDC worked with the National Drug Institute, Substance Abuse and Mental Health Services Administration and the Office of the National Coordinator for Health Information Technology to review existing opioid prescribing guidelines for chronic pain. Their review and analysis of eight prescribing guidelines highlighted a number of important provider actions, such as the review of pain history, medical and family history, pregnancy, prescription drug monitoring programs (PDMP), urine drug screening, evaluations of alternatives to opioids, rational documentation, tapering plans, referrals for medication assisted treatment, evidence review, conflicts of interest and more(5). In January, Kentucky Attorney General Andy Beshear announced his support for national guidelines for prescribing opiates for chronic pain, stating: “In Kentucky, we face a crushing epidemic of addiction. One of my core missions as attorney general is to better address the drug problem faced by our Kentucky families and workforce.”(6) In his speech, the attorney general mentions that he is joining other state attorneys general in voicing support for the CDC guidelines for prescribing opiates for chronic pain.

California’s “Division of Workers’ Compensation Guideline for the Use of Opioids to Treat Work-Related Injuries” documented treatment protocols for three specific pain categories:

  1. Opioids for acute pain (pain lasting as much as four weeks from onset)
  2. Opioids for subacute pain (one to three months)
  3. Opioids for chronic pain and chronic opioid treatment (three months or more)(7)

The guidelines state that, in general, opioids are not indicated for mild injuries such as acute strains, sprains, tendinitis, myofascial pain and repetitive strain injuries. Just as important, the guidelines clearly warn physicians to consider and document relative contraindications (e.g., depression, anxiety, past substance abuse, etc.). The document provides an abbreviated treatment protocol for the three pain categories that address important topics like prescribing a limited supply of opioids, documentation, accessing California’s PDMP, monitoring opioid use, evaluating the use of non-opioid treatments, completing opioid use, educating patients on opioid usage and potential adverse effects, responsibly storing and disposing of opioids, tracking pain level, screening for the risk of addiction, testing urine for drugs and more.

At the end of the day, it is important for workers’ compensation insurers and physician employees to clearly understand the opioid prescribing guidelines that help physicians achieve a proper balance between treating workers’ pain and keeping them safe from any adverse impacts of excessive opioid usage. With more insurance companies leveraging early physician peer-to-peer outreach to open a dialogue between the insurance company physician and the treating physician, knowing prescribing guidelines and sharing that knowledge will be more important than ever in improving outcomes and return to work.

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The Inspiration for Using Analytics

For more than a decade, Deloitte Consulting’s Advanced Analytics & Modeling practice has been developing claim predictive solutions designed to help insurance companies, self-insureds and third-party administrators better segment and triage predicted high-severity from low-severity claims, enabling business decisions and actions that can help drive loss cost savings of as much as 10% of an organization’s annual claims spending. (See Claims Magazine articles “Analytics on the Cloud: Transforming the Way Claims Leverages Advanced Analytics “(2011)(8), “Enhancing Workers’ Comp Predictive Modeling With Injury Groupings” (2012)(9), “Reaping the Financial Rewards of End-to-End Claims Analytics” (2014)(10) and “The Challenges of Implementing Advanced Analytics “(2014).(11) A large part of the claims modeling success is attributed to gaining actionable insights as early as first notice of loss before adverse chain reactions can set in, and shortly thereafter with the three-point contact investigation where additional information is learned about the patient’s history and co-morbidities.

The authors, having observed the success of predicting claims complexity outcomes early in the claim’s lifecycle, became excited about the application of similar models to help identify early warning signs of future excessive opioid usage by injured workers. With as much as 60% of workers’ compensation spending going toward medical costs, one-fifth of that related to prescription drugs(12), we believed the use of predictive models… combined with physician peer-to-peer outreach and proper prescribing guidelines… could help workers’ compensation insurers improve the lives of the injured workers while significantly reducing medical expenditures. The following sections explain the analytics journey undertaken to help move the needle on this issue.

Defining the Target Variable: Predicting Future Excess

An important part of any analytics journey is defining the target variable (i.e., what we are trying to understand and predict). Excessive opiates usage is difficult to ascertain, as higher consumption may indeed be necessary for the most severe injuries. Therefore, various tests on the most appropriate target variables were conducted to probe these hypotheses. Many versions of opioid supply days were tested (i.e., ultimate total supply days across all opiates drugs prescribed to, and consumed by, the injured worker). Variations of opiates prescription counts were also considered (i.e., ultimate count of opiates prescriptions through the lifecycle of the claims). Similarly, supply units were analyzed (i.e., ultimate sum of all individual opiates pills prescribed to, and consumed by, the injured worker from the day of the injury until the claim closure). Figure 1 illustrates the calculation of total supply days for three different opiates that were prescribed to, and consumed by, the injured worker over the duration of his workers’ compensation claim:

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Figure 1. Supply Day Illustration

Methodology and Data Considered

Using predictive analytics and data science, a number of algorithms were built, tested, iterated and fine-tuned to better understand those like-injury cohorts (i.e., same injury sustained) that consumed more opiates than their corresponding peers who managed to consume a lower amount. Various thresholds of “excess” were analyzed by injury and venues, thus controlling for differences that affect the prescription base.

By testing these algorithms, it was determined that segmentation was similar across the different target variables. However, total supply days seemed to exhibit the most robustness from a modeling perspective and had intuitive interpretability (i.e., number of days an injured worker consumes opioids).

The algorithms used more than eight years of lost time workers’ compensation claims to accumulate enough data credibility. Claims were selected for various injury groups where opiates were prescribed and consumed for at least one prescription. The data was organized for a longitudinal study observing a claimant over time and quantifying her consumption of opiates. The comparison to this usage to like-injury counterparts over thousands of cases and using hundreds of attributes is what helped the model shed light on claimants who consumed excessive amounts of opioids relative to the entire population.

Over the years, Deloitte healthcare practitioners and claims professionals used ICD-9 codes that describe a disease or condition, as well as National Council on Compensation (NCCI) nature of injury and body part codes, to create more than 70 proprietary injury groups that are factored into the model to provide enhanced segmentation within like injury claims.(13) For illustration purposes in this article, we presented results for the injury group representing medium- and high-complexity spinal disorders (e.g., ICD-9 codes 722.0 – displacement of cervical intervertebral disc without myelopathy, 722.10 – displacement of lumbar intervertebral disc without myelopathy, 724.9 – other unspecified back disorders, etc.). We selected medium- and high-complexity spinal disorder claims because they are significantly more severe than the average workers’ compensation claim, and, as expected, these claimants typically have more prescriptions filled by their physicians. In addition, the models aren’t run on just any injury group. For example, an injury group containing low-complexity injuries such as finger cuts and minor open wounds would not be part of our analysis. Claimants with these types of low-complexity injuries do not require opioids, given the nature of injury, so it would not make sense to include these injury groups in the model.

Predictive variables

The information attributes used to understand excessive consumption were sourced from similar data sources used in developing our claim-severity models. They are large in number and varied in terms of coverage. They include claimant data (e.g., claimant age, gender, job classification, years of employment, wage, claim filing lag, cause and nature of injury, etc.), prior claims data (e.g., prior frequency and type of claims), employer information (e.g., financial characteristics, years in business, etc.), injury circumstance (e.g. location, type, body part injured), three-point contact information (e.g., co-morbidities, early medical services) as well as other standard external third-party data sources (e.g. lifestyle, behavioral, geo-demographic).

Modeling Results

The lift curves shown in Figure 2 illustrate the segmentation achieved by using multivariate equations to predict total supply days. Each claim below was scored using the model, which generated scores from 1 to 100, with lower scores corresponding to smaller predicted supply days and higher scores corresponding to larger predicted supply days. This score is represented on the x-axis of Figure 2, where each “decile” refers to a group of claims that compose 10% of the data. The actual supply days are tracked and plotted on the y-axis in the appropriate decile.

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Figure 2. Lift Curve – GLM model

As one can see from Figure 2, injured workers studied who are predicted to fall in decile 10 have more than 18 times the supply days as workers predicted to fall in decile 1. Injured workers studied who scored in decile 10 consume, on average, more than three and a half years of opioid supply days! This very large and widespread segmentation suggests that individuals sustaining the same injury can still vary significantly in their future consumption of opioids… and this variation ranges from a couple months to more than three and a half years.

In Figure 3, we compare two 24-year-old male claimants with very similar injuries but drastically different predicted outcomes.

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Figure 3. Similar Injuries, Drastically Different Outcomes

As one can see from Figure 3, the claimant scoring in decile 10 has a number of variables that correlate with the potential for excessive opioid use. Given the combination of co-morbidities, worker health, reporting lags, employer business conditions and additional attributes collected on the individual from external sources (e.g. lifestyle and behavioral data), it is possible for the insurance company to identify and analyze the early drivers that may lead to future excessive opioid the first few days after receiving notice of the claim.

With more than 60 predictive variables in the model (e.g., co-morbidities, prior claims history, job classes, injury causes, business characteristics, claim characteristics, etc.), the most influential categories and reason codes driving the score represent “eyeglasses” for the insurance company physician. The model helps the insurance company physician weigh together multiple pieces of information but doesn’t replace his judgement. Analogously, many of us wear eyeglasses to read a dinner menu, but those eyeglasses do not order the food for us.

Armed with a plethora of facts and the opioid prescribing guidelines, a physician can open a dialogue with the treating physician to help guide the discussion in a direction that best benefits the injured worker. The physician, using the prediction from the model, can tailor appropriate decisions and actions – from low touch or regular prognosis for the first claimant above, to a much more closely managed case for the second individual.

Figure 4 provides a drill-down into the actual versus predicted supply days achieved in the highest-scoring 30% of medium- to high-complexity spinal disorder claims for the train/test data and validation data. Using the train/test/validation approach, the models were trained and enhanced using approximately 70% of the claims data. The validation results shown below were derived from the remaining 30% of the claims data that was held in “cold storage.” Using this kind of blind-test validation data helps ensure that the model’s estimated “lift” (i.e., segmentation power) is true and unbiased.

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Figure 4. Highest Score Drill-Down

Approximately 60% of claims scoring in deciles 8, 9 and 10 exceed one year in supply days. For a quarter of the claims, the injured workers take in excess of four years in supply days of opioids. At the far end of the spectrum, roughly 4% of medium- to high-complexity spinal disorder claims scoring in deciles 8, 9 and 10 will exceed a decade’s worth of opioids in supply days.

One Last Check

In addition to the generalized linear models (GLMs) discussed above, focused on predicting the actual supply days, we also ran a logistic regression model focused on predicting which claimants would take more than a year’s supply of opioids. Using classical statistical measures of precision (i.e., how many of the positively classified results are relevant), recall (i.e., how accurate the model is at detecting the positives) and specificity (i.e., how good the model is at avoiding false alarms), we achieved the following results: a precision of 59%, a recall of 64% and a specificity of 72%.(14) As one last test of the logistic regression model’s segmentation power, we calculated the receiver operating characteristic (ROC) curve.  At almost 80%, it represented a good model from a statistical perspective. Although illustrative, we prefer the GLM model presented above.

Behavioral Economics and Nudges

All across the country, physicians and medical boards are spreading the word about the responsible prescribing of opioids. State and federal agencies are toughening criminal and administrative penalties for doctors and clinics that traffic in prescription drugs. Governors across the country are forming opioid working groups that include senior Health and Human Services professionals, attorneys general, drug courts, hospital professionals, elected officials and more.

Research shows that a number of factors can help insurance companies better understand the severity of claims early on in the life cycle of a claim. Two studies by the National Council on Compensation Insurance, Inc. (NCCI) highlight the effect of obesity on workers’ compensation claims. According to “Reserving in the Age of Obesity,” a Nov. 1, 2010, NCCI study by Chris Laws and Frank Schmid, the ratio in the medical costs per claim of obese to nonobese claimants deteriorates over time from a ratio of 2.8 at the end of one year, to 4.5 at the end of three years, to 5.3 at the end of five years.(15) In a following study from May 29, 2012, “Indemnity Benefit Duration and Obesity,” authors Frank Schmid, Chris Laws and Mathew Montero found the duration of obese claimants is more than five times the duration of nonobese claimants, after controlling for primary International Classification of Diseases (ICD)-9 code, injury year, state, industry, gender and age for temporary total and permanent total indemnity benefit payments.(16) Deloitte’s claim predictive models have shown that the number of medical conditions at the time of injury plays a significant role in determining the ultimate severity and potential for excess opioid usage (e.g., claims with three or more existing medical conditions are 12 times more costly than claims with no existing medical conditions).

With energy and momentum building around addressing the opioid epidemic, insurance companies can leverage behavioral economics and data-driven nudges to help treating physicians improve outcomes and return to work. Leveraging prescribing guidelines and the model results and reason codes that help explain the top five drivers behind the model prediction, insurance company physicians can be more strategic in shaping the discussions they have with treating physicians. For the highest-scoring claims, the insurance company may want to use a mix of peer-to-peer contact and data-driven nudges (e.g., “did you know that 95% of physicians we work with follow the state prescribing guidelines and only prescribe 30 days of opioids for this type of claim,” ”for injuries of this type, physicians we work with usually prescribe less than x milligrams of strength,” etc.). For lower-scoring claims, the insurance company may touch base with the treating physician but skip any reference to data-driven nudges.

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Conclusion

In the end, it is important for workers’ compensation insurers and their medical professionals to clearly understand opioid prescribing guidelines and the internal and external factors that could affect the opioid usage and habits of their injured workers. A Business Insurance white paper titled “Opioid Abuse and Workers’ Comp – How to Tackle a Growing Problem,” described the challenge well: “Monitoring or managing opioid abuse is another key step for workers’ comp managers. It’s not enough to simply dive into the data and look for claimants who appear to be using lots of opioids. Nor is preventing doctors from prescribing opioids a desirable action. The goal is to find claimants who are struggling with a problem they never intended to have, and support those claimants in solving that problem.”(17)

However, our hope is that through the use of predictive analytics (i.e., the ability to identify, in the first few days of receiving a claim, individuals most likely to become high consumers of opioids), prescribing guidelines and physician peer-to-peer outreach, we can help increase insurers’ and treating physicians’ awareness as they work to help prevent injured workers from struggling with dependency and addiction before the behaviors or habits ever form.

As former British Prime Minister Benjamin Disraeli once said, “What we anticipate seldom occurs; what we least expect generally happens.” The science and passion exists today to better anticipate opioid trends and help prevent opioid dependency and addiction before it happens.

As used in this document, “Deloitte” means Deloitte Consulting LLP, a subsidiary of Deloitte LLP. Please see www.deloitte.com/us/about for a detailed description of the legal structure of Deloitte LLP and its subsidiaries. Certain services may not be available to attest clients under the rules and regulations of public accounting.

This communication contains general information only, and none of Deloitte Touche Tohmatsu Limited, its member firms, or their related entities (collectively, the “Deloitte Network”) is, by means of this communication, rendering professional advice or services. Before making any decision or taking any action that may affect your finances or your business, you should consult a qualified professional adviser. No entity in the Deloitte Network shall be responsible for any loss whatsoever sustained by any person who relies on this communication.

Copyright © 2016 Deloitte Development LLC. All rights reserved.

[1] James W. Harris, PhD, CSO Vatex Explorations LLC, www.gpo.gov

[2] http://www.cdc.gov/media/releases/2015/p1218-drug-overdose.html, http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6450a3.htm?s_cid=mm6450a3_w

[3] http://www.riskandinsurance.com/paying-detox/

[4] http://usatoday30.usatoday.com/news/military/2011-01-27-1Adruggeneral27_CV_N.htm

[5] http://www.cdc.gov/drugoverdose/prescribing/common-elements.html

[6] http://harlandaily.com/news/6473/cdc-guidelines-will-help-ky-with-rx-drug-abuse

[7] http://www.dir.ca.gov/dwc/ForumDocs/Opioids/OpioidGuidelinesPartA.pdf

[8] http://www.propertycasualty360.com/2011/02/22/leveraging-analytics-in-workers-comp-claims-handli

[9] http://www.propertycasualty360.com/2012/07/23/enhance-workers-comp-predictive-modeling-with-inju

[10] http://www.propertycasualty360.com/2014/02/03/reaping-the-financial-rewards-of-end-to-end-claims

[11] http://www.propertycasualty360.com/2014/10/01/the-challenges-of-implementing-advanced-analytics

[12] www.ncci.com

[13] http://www.propertycasualty360.com/2012/07/23/enhance-workers-comp-predictive-modeling-with-inju

[14] Precision measures the ratio of true predicted positives to the ratio of true predictive positives plus false predicted positives. Recall, also referred to as sensitivity, measures the ratio of true predicted positives to the ratio of true predicted positives plus false predicted negatives. Specificity measures the ratio of true predicted negatives to the ratio of true predicted negatives plus false predicted positives.

[15] https://www.ncci.com/Articles/Documents//II_research-age-of-obesity.pdf

[16] https://www.ncci.com/Articles/Documents/II_Obesity-2012.pdf

[17] http://www.businessinsurance.com/article/99999999/WP05/120509952

Will Rubio’s Measure Undermine ACA?

Republicans stated goal is to “repeal and replace” the Patient Protection and Affordable Care Act. That hasn’t happened and won’t at least through the remainder of President Barack Obama’s term. So a secondary line of attack is to undermine the ACA. And Sen. Marco Rubio has had success in that regard.

As reported by The Hill, Sen. Rubio accomplished this feat by weakening the ACA’s risk corridors program. Whether this is a long- or short-term victory is being determined in Washington now. We’ll know the answer by Dec. 11.

President Obama and Congress recognized that, given the massive changes to the market imposed by the ACA, health plans would have difficulty accurately setting premiums. Without some protection against under-pricing risk, carriers’ inclinations would be to price conservatively. The result would be higher than necessary premiums.

To ease the transition to the new world of healthcare reform, the ACA included three major market stabilization programs. One of them, the risk corridors program, as described by the Kaiser Family Foundation, “limits losses and gains beyond an allowable range.” Carriers experiencing claims less than 97% of a targeted amount pay into a fund; health plans with claims greater than 103% of that target receive funds.

The risk corridor began in 2014 and expires in 2016. As drafted, if payments into the fund by profitable insurers were insufficient to cover what was owed unprofitable carriers the Department of Health and Human Services could draw from other accounts to make up the difference.

Sen. Rubio doesn’t like risk corridors. He considers them “taxpayer-funded bailouts of insurance companies at the Obama administration’s sole discretion.” In 2014, he managed to insert a policy rider into a critical budget bill preventing HHS from transferring money from other accounts into the risk corridors program.

The impact of this rider has been profound.

In October, HHS announced a major problem with the risk corridors program: Insurers had submitted $2.87 billion in risk corridor claims for 2014, but the fund had taken in only $362 million. As a result, payments for 2014 losses would amount to just 12.6 cents on the dollar.

This risk corridor shortage is a major reason so many of the health co-ops established under the ACA have failed and may be a factor in United Health Group’s decision to consider withdrawing from the law’s health insurance exchanges. (United Health was not owed any reimbursement from the fund but likely would feel more confident if the subsidies were available).

The Obama administration certainly sees this situation as undermining the Affordable Care Act. In announcing the shortage, HHS promised to make carriers whole by, if possible, paying 2014 subsidies out of payments received in 2015 and 2016. However, the ability to do so is “subject to the availability of appropriations.” Which means Congress must cooperate.

That brings us back to Sen. Rubio’s policy rider. It needs to be part of the budget measure Congress must pass by Dec. 11 to avoid a government shutdown. If the policy rider is not included in that legislation, HHS is free to transfer money into the risk corridor program fund from other sources.

Sen. Rubio and other Republicans are pushing hard to ensure HHS can’t rescue the risk corridors program, claiming to have already saved the public $2.5 billion from a “crony capitalist bailout program.” Democrats and some insurers, seeing what’s occurred as promises broken, are working just as hard to have the rider removed.

By Dec. 11, we’ll know whether the ACA is further undermined or bolstered.

Rising Risks of Medicare Audits

Texas physician Dennis B. Barson Jr. and his medical clinic administrator are headed to prison. The 10-year prison sentence imposed against Barson, like an $8 million-plus healthcare fraud civil settlement announced by the Justice Department on July 24, 2014, illustrate the significant legal risks that physicians and other healthcare providers face when physician charges are improperly billed to Medicare, Medicaid, Tricare or other federal or state healthcare programs for services actually provided by non-physician staff.

Physicians and others should heed the lessons from these and other similar federal and state healthcare fraud enforcement actions when deciding when it is appropriate to bill federal healthcare programs for physician services where physicians assistants, nurse practitioners or other nursing staff or other non-physicians perform part or all of the procedures billed.

Dr. Barson Prison Sentence Highlights Criminal Risks

On Monday, July 27, 2015, U.S. District Court Judge Melinda Harmon ordered Barson to serve 120 months in prison, followed by three years of supervised release, and to pay restitution of approximately $1.2 million for his Nov. 5, 2014, conviction on all 20 counts of conspiracy to defraud Medicare of $2.1 million.

With Judge Harmon presiding, a Houston jury found Barson and his medical clinic administrator, Dario Juarez, 55 years old, guilty on the Medicare fraud charges last November. Another co-defendant, Edgar Shakbazyan, entered a guilty plea to the 21-count original indictment on Oct. 27, 2014. Shakbazyan, of Glendale, CA, was sentenced to 97 months in prison, while Juarez, of Beeville, Texas, received 130 months. Both will also serve three years of supervised release.

The jury convictions of Barson and Juarez followed a trial where Department of Justice prosecutors proved the healthcare fraud charges based on evidence that Barson, Juarez and Shakbazyan fraudulently billed Medicare for rectal sensation tests and electromyogram (EMG) studies of the anal or urethral sphincter that were never performed. Shakbazyan was additionally charged and pled guilty to conspiracy to pay kickbacks for payments made to recruiters and beneficiaries.

According to the testimony at trial, Barson was the only doctor affiliated with the medical clinic located at 8470 Gulf Freeway in Houston. However, Juarez represented himself to be a doctor and was the one who actually saw patients at the clinic. Barson, Juarez and Shakbazyan caused Medicare to be billed for procedures on 429 patients in just two months. The three men also billed Medicare for seeing more than 100 patients on 13 different days, including a high of 156 patients on July 13, 2009.

Barson’s defense attempted to convince the jury that he was a victim of identity theft and was not the perpetrator of the crimes. The conviction shows the jurors did not believe his story. The criminal charges are the result of a joint investigation conducted by agents of the FBI, Department of Health and Human Services-Office of Inspector General and the Medicaid Fraud Control Unit of the Texas Attorney General’s Office.

Margossian Settlement Shows Even More Common Civil Penalty Risks

Barson’s sentencing is one of a growing series of criminal convictions and sentencing of physicians and other healthcare providers for healthcare fraud by participating in arrangements where Medicare, Medicaid or other federal healthcare programs are billed for services not provided or not provided as required to qualify for reimbursement. On July 24, 2015, for instance, the U.S. Attorney for the Eastern District of New York and the State of New York announced that Brooklyn, NY, OB/GYN Haroutyoun Margossian will pay $8 million as part of a civil settlement with the U.S. and the state of New York. The settlement resolves charges brought under the federal False Claims Act and the New York False Claims Act that Margossian wrongfully billed Medicare and Medicaid for physician services for treatments of women suffering from urinary incontinence that unlicensed and often unsupervised staff, rather than Margossian or another physician, actually administered. The government has also filed a criminal charge against Margossian for making false statements to Medicare and entered into a deferred prosecution agreement with him.

Healthcare Fraud Investigations Raise Other Licensing and Practice Risks

The Barson and Margossian actions are just two of the already long and ever-growing list of criminal convictions, civil sanctions and civil settlements that federal and state healthcare fraud fighters already can count as notches of success in their war against healthcare fraud by physicians and other healthcare providers. With these successes fueling more investigations, physicians and others should be prepared to “do time” for improperly billing physician fees to federal healthcare programs for services not provided by the billing physician or for engaging in other inappropriate billing practices. Targets of audits and investigations also must prepare to deal with a host of other threats to their practices that almost inevitably arise regardless of whether the government investigation leads to a conviction, civil sanctions or a settlement.

As demonstrated by the Margossian settlement, even if physicians, practice management and others swept up into these investigations escape being criminally charged, subjected to civil sanctions or penalties or suspended or excluded from Medicare or other federal healthcare programs, healthcare fraud investigations or charges still will carry a heavy cost. Healthcare fraud warriors are realizing great success in securing civil sanctions and settlements, federal program exclusions and other civil and administrative punishments against physicians and other healthcare providers that the government accuses of violating the False Claims Act or other federal healthcare fraud rules.

Of course, whether healthcare fraud investigations ultimately result in any civil or criminal prosecution, conviction or settlement, physicians and other licensed healthcare providers under suspicion of healthcare fraud inevitably must deal with a broad range of other professional fallout. These activities almost always trigger scrutiny or other actions by employers and medical practices, healthcare organizations and licensing boards.

Act to Strengthen Your Defenses

Physicians and others should take steps to minimize the risk of an investigation or audit as well as take steps to help ensure sufficient resources to defend themselves if the government comes knocking.

Of course, the first step should be to take proper, well-documented efforts to comply with the rules. Physicians and the clinics, hospitals and management working with them should carefully evaluate what can be defensibly billed as physician services to Medicare or another federal healthcare program — keeping in mind that the billing party, not the government, generally bears the burden of proving that the amount bill qualifies for coverage. Physicians and others must carefully consider the adequacy of the physician’s involvement in prescribing and delivering services intended to be billed as physician services. In areas where questions could be raised, physicians and their organizations are strongly urged to take extra care to retain documentation of their analysis and efforts to verify their compliance, including consulting legal counsel for advice within the scope of attorney-client privilege.

Physicians and others working with them also should familiarize themselves with their obligations and rights under employment agreements, shareholder or partnership agreements, medical staff bylaws, managed care contracts, medical licensing board rules and the Health Care Quality And Improvement Act. In many cases, these arrangements will compel a physician to provide notice of an investigation, audit, allegation or charge, will trigger separate investigatory or disciplinary action against the physician, or both.

Along with the stiff civil sanctions or settlements imposed, physicians and others investigated or charged with healthcare fraud often incur significant legal and other costs. Physicians and others should consider if they can expect to have sufficient funds to pay the legal and other costs of their defense. Physicians and their organizations concerned about the adequacy of these resources may wish to explore, where available, raising their malpractice policy coverage limits, purchasing other supplemental coverage and taking similar steps to better position themselves. Physicians generally will want to review the adequacy and limits of the coverages that their practices provide, as well as consider the reliability of that coverage in the event that the physician is terminated or leaves the practice.

Because of the 10-year statute of limitations applicable to False Claims Act claims, billings can come back to haunt a physician 10 years after their submission. With this tremendously long liability period, even in the absence of government investigation, a significant risk exists that a physician may experience a practice relocation or other change that would affect his coverage during this period. When an investigation happens, the possibility that the physician will relocate his practice skyrockets. Consequently, physicians should consider purchasing tail coverage, maintaining separate, portable professional liability coverage or both.

Physicians and their practices also should consider the adequacy of the coverage provided by their professional liability or other policies. If the policy provides no or limited coverage, both the physician and his associated organization or practice may want to explore purchasing additional riders on the existing policy, purchasing separate coverage or both, as well as to raise the limits on the coverages.

Practice leaders, hospitals and other organizations that would be swept up into these investigations generally share an interest in ensuring that the physician possesses adequate resources to defend herself, as their organization and its billings are likely to be hurt if the physician is unable to defend the billings.