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What the Crackdown on Painkiller Prescribing Means for HR

Analysis  |  By Lena J. Weiner  
   April 10, 2017

When hospitals and health systems are implicated in legal cases, it can hurt reputations, morale, and the bottom line. Here's what HR can do to minimize the damage.

Federal and state governments are ramping up enforcement around the over-prescription of painkillers and other scheduled medications, and doctors and pharmacists are at risk for being caught in the government's net, warns one attorney.

"It's very hard for medical professionals and those in upper management, such as hospital CFOs, CEOs, and CMOs, to see themselves as criminals," says Jack Sharman, partner at Lightfoot, Franklin, and White, a law firm headquartered in Birmingham, AL.

"This difficulty to perceive what someone else might think merits a criminal investigation impedes judgement and slows internal response."

While physicians might not see themselves as criminals for managing patients' pain or making sure they had enough pills to get through a holiday, it's not hard for others to come to that conclusion, says Sharman.

"I always remind people that a prosecutor, investigator, or regulator can view you any way they wish, and it has nothing to do with your credentials or how many people you've helped," he says.

It often falls on HR to make sure someone is keeping an eye on compliance, while staying aware of how things might look to those outside the hospital.

Sharman discussed with Healthleaders recently what HR leaders need to know to keep doctors and pharmacists on the right side of the law. This transcript below has been lightly edited.

HL: What can you tell us about the current legal landscape regarding scheduled medication compliance for healthcare providers?

Jack Sharman: Over the last three years, the government has taken a much more aggressive stance. It has been prosecuting physicians, both within their own practices and those affiliated with a health system, for performing unnecessary medical procedures or dispensing what the government has determined to be unnecessary medications.

This is a fairly recent phenomenon, at least with the robustness that we’ve been seeing.

It’s very troubling to lots of people within healthcare. Doctors and pharmacists are asking themselves, "if I write this prescription, three years from now, will I see it blown up on monitor in a courtroom?"

HL: What are some factors that can call legal attention to a hospital or health system?

Usually, these things are kicked off by someone either outside the organization or inside who sees themselves as aggrieved. Most often it's a disgruntled employee or a dissatisfied patient.

The next thing that could catch law enforcement's eye is volume. They'll look at Medicare data and private payer data. High volume by itself doesn't tell you much of anything—the doctor could be busy, or you could run a popular, high volume hospital or health system.

But prosecutors will always look at volume.

Another flag to watch for is impaired healthcare professionals. At one organization I defended, there were two nurse practitioners employed, both of whom were very qualified and competent. But both of them were addicts.

They tried to get clean, but they were using while working. Needless to say, this didn't look good when it came out that the organization was dispensing high levels of scheduled meds.

Addicted people are also very vulnerable to government pressure. FBI agents show up and scare them, then say something like, "We're not looking to put you away. Help us out; we can help you."

And if the case gets to the point of a trial, [the fact] that addicts worked in your facility sounds awful. Whether you win or not in court, you'll lose in the court of public opinion.

HL: What is the right thing for HR and hospital leadership to do when staff when they are accused of inappropriate behavior around dispensing or prescribing medications?

Sharman: At this point, you need to take it seriously. I know it sounds obvious, but you would be surprised how often responsibility shifts from one person to another as if it were just a claim on a form.

Make sure it doesn’t get ignored. Little things could become big things.

There will be a demand for documents, and you want to be sure somebody knowledgeable is put in charge of collecting those documents. Make sure they're organized, that you know where each document originated, and that you have something to refer to.

Beyond that, your organization may need to conduct some level of internal investigation.

Also, you'll want to make sure people don't panic and start destroying documents, which happens frequently.

People aren't intending to destroy evidence of a crime, but they might have something embarrassing, such as porn, on their work computer. They'll wipe the entire file, and that becomes a bigger crime.

HL: Are criminal charges something health systems should be worried about?

Sharman: Even the most aggressive prosecutors are usually reluctant to charge an entire health system. But that doesn’t mean health systems can shrug off this threat.

The civil implications and reputational damage can be significant, even if the organization is not charged criminally. These things can be disruptive and expensive. Ultimately, a lot of bad things can happen, even if the organization is never charged criminally.

Lena J. Weiner is an associate editor at HealthLeaders Media.

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