Grand Jury Indicts Buprenorphine Physician

I am not an apologist for any physician who breaks the law. The government should prosecute true criminal offenses. I just would prefer those offenses be actual crimes and not part of generally accepted medical practice.

I’m not going to name names. I don’t want to bring any additional grief to the parties involved. My purpose in writing this blog is to point out some disturbing portions of the grand jury indictments against this provider, and to ask my audience how they feel about specific details of the indictments, like “…buprenorphine doses were often not appropriately tapered.”

I am writing this from the point of view of a physician, of course. I am not a lawyer, despite having watched all “Law and Order” episodes so often that I can quote large chunks of dialog. Sometimes my husband will ask me if recognize the episode from the opening scene. Often, without looking up, I’ll say something like “Bad uncle up in Yonkers,” or “People ain’t just one thing,” or – my favorite – “You heard my husband. He’s not a perfect man. He’s made some mistakes.” That last one is said with grim satisfaction by a wife who successfully set up her husband to take the fall for the murder of his mistress.

I digress. My point is I don’t know law. I’m giving you my reactions and opinions and asking for yours.

This all started nearly three years ago when this physician, who owned a chain of office-based buprenorphine facilities in Eastern Tennessee, Virginia, and North Carolina had his offices raided by federal agents. They took banking records, patient records, billing records, and other things. This put the physician out of business and disrupted the treatment of patients with opioid use disorder who were being treated by physicians working in those offices.

The grand jury indictment was just made public this spring, nearly three years later.

The indictment contains multiple charges, and is a little hard to read, but primarily accuses this doctor, and other providers working in his programs, of prescribing buprenorphine without legitimate medical purpose.

Thus far there is only one FDA-approved reason to prescribe sublingual buprenorphine products: opioid use disorder. Did this doctor prescribe for another reason? Since his practices were described as opioid use disorder treatment programs, this charge puzzles me.

I suppose he could have prescribed sublingual buprenorphine for pain, both because it works and because it’s less likely to be misused. I know the DEA frowns upon this and prefers patients with only pain and no opioid use disorder be prescribed the transdermal products, but I doubt this would be an offense that federal prosecutors would pursue. Besides, separating patients into “pain only” and “opioid use only” groups isn’t practical because of the large overlap.

Among the many complaints, the indictment said the medical records of patients were “superficial” and used cut- and -paste from prior notes.

I’ve blogged about this before. Many of the office-based notes I get from other providers contain obvious cut-and-paste documentation. It’s very common. It’s irritating to get pages and pages of notes on a patient, only to realize there’s very little information there, only repetition. It’s poor documentation and unethical. I am reminded of the notes I got from a local buprenorphine provider that described the patient as having “abdomen consistent with 8-month pregnancy,” for over a year.

Physicians do this because it saves them time and allows “upbilling.” Insurance companies and Medicaid pay on the intensity of the office visit, and if the doctor includes extensive history and physical exam components at each visit, they get paid more. Rather than take the time of doing an extensive review of systems and exam each visit, unethical providers will cut and paste from prior visits. Of course, if the doctors don’t perform what they’ve documented, it’s insurance fraud.

But these practices didn’t accept insurance or Medicaid, which brings me to the next part of the indictment: that the doctor had a “cash only” practice. That is, patients paid for their visits with cash, check, debit/credit cards even if they had insurance or Medicaid. So, these practices couldn’t commit insurance fraud, if they didn’t even participate in insurance programs.

The government can’t force physicians to accept Medicaid or Medicare payment for medical services. Physicians have the right not to participate in these programs. However, as I understand it, providers need to submit something to Medicaid saying they opt out of that program for three years. If you do that, it is perfectly legal to ask patients who have Medicaid insurance to pay whatever cash price you decide to charge. Patients with Medicaid are free, of course, to select a provider who does accept Medicaid.

That’s difficult to do since Medicaid doesn’t reimburse physicians very well for their time. Medicaid pays much better for procedures and surgeries. It’s hard to find buprenorphine prescribers who are willing to accept what Medicaid pays for their time, and in rural areas may be impossible to find.

So, as I understand it at least, it isn’t illegal to refuse to accept Medicaid. You just can’t accept Medicaid from some patients and refuse to accept for other Medicaid patients.

The indictment says Medicaid patients took their prescriptions to their pharmacies, where Medicaid paid for them. I don’t know how that violates the law unless the physician owns the pharmacy.

Then we come to the part of the indictment that describes laboratory shenanigans. Sadly, these also are all too common in our field and give good providers a bad name. (You can also read about this in a past blog of mine, January 23, 2019) As I understand it, this is how it usually works:

A laboratory organization makes an office-based physician a seemingly fantastic offer. They will provide urine drug screens testing for a hundred or so drugs, with the most accurate system that there is. This is usually something involving gas chromatography or mass spectrophotometry. This type of test is more specific and provides fewer false positives than the cheaper immunoassays usually used. And that’s not all – the laboratory company might provide an employee to the doctor’s office to collect and package all those drug screens. This frees the physicians’ employees to do other chores and saves money. The lab company promises to do free testing for patients without insurance, which sounds altruistic, but they will bill patients with insurance, including Medicaid.

And they really bill private insurers and Medicaid. Labs charge hundreds and even thousands for a single urine drug screen testing for a hundred or so substances. The physician feels like he’s able to do better lab tests, the patients without insurance don’t pay at all, so it seems superficially like a good thing. But private insurers and Medicaid get soaked and the laboratory company makes a juicy profit.

For this to work, the physician must provide a statement that all these tests are medically necessary. It’s not true, of course. All the rest of us physicians get by nicely with drug panels testing for seven to twenty specific drugs. We must decide which patients need more extensive testing and which ones don’t, to keep costs reined in.

The indictment describes this sort of lab arrangement and implies it’s illegal. To me, it appears to be insurance fraud. However, the primary beneficiary to this arrangement is the laboratory. The doctor’s office does get an employee to collect drug screens that he doesn’t have to pay for, but that’s hardly a bonanza. This indictment opines that the money that patients saved on drug testing was channeled to the doctor, to pay for office visits. That’s fuzzy reasoning.

The indictment also said the test results were not available at the time the patient was seen and that no “appropriate actions” were taken regarding abnormal findings. I wonder what prosecutors think that “appropriate action” would be.

Any unexpected drug screen result should result in a conversation between patient and provider, but should not result in termination of treatment, except for extraordinary circumstances. I worry that prosecutors imagine that the physicians at these programs should have stopped treatment for patients with unexpected drug screen results, when the opposite is true. Ongoing drug use means patients need more treatment, not less. In fact, stopping or tapering buprenorphine increases the risk of overdose death by at least three-fold, so that would be the worst option.

The indictment also complained that the drug screens weren’t random, and they were done at the time of the patient’s visit.

Uh oh. That’s exactly what I do, except in unusual situations. Once in a great while, I’ll call a patient and ask them to go to a Labcorp facility for a random urine drug screen, if I’m worried about them. Random drug screens probably are the best option, but logistically it’s difficult. Most of my patients work, and it’s hard enough for them to get time off to see me each month.

The next part of the indictment made me giggle with delight. It said providers at the facilities had inappropriately co-prescribed benzodiazepines with buprenorphine products.

I’ve said in the past, jokingly, that it should be illegal to prescribe benzodiazepines to patients on buprenorphine. But it isn’t. Or at least, it isn’t in places other than this corner of the world. Elsewhere, it’s a matter of physician judgement, or it should be. I’m the most anti-benzo physician I know, and I still have a few patients on benzodiazepines while also on buprenorphine. Patient circumstances vary widely, and providers must be allowed to use our best judgment.

Then there was a confusing section where the indictment said patients were prescribed inappropriately high, but they didn’t say what dose they considered to be too high. Instead, the indictment had odd little tables of appointment dates and how many doses were filled per unidentified patients.

I could not understand what these tables were supposed to demonstrate, but I’m going to guess the prosecutors allege that doses above 16mg per day are excessive. Five or so years ago, some experts in the field said no patient should ever need more than 16mg sublingually per day. That’s been debunked, and current teaching is that doses up to 24mg per day might work better for some patients and retain them in treatment. You can read more about this in my blog of October 8, 2017, because this is not new information.

It feels to me like these prosecutors got way down in the weeds with these indictments, trying to decide what appropriate medical treatment should be. I don’t think prosecutors should try to decide what a patient’s dose of buprenorphine should be. I don’t think they should be the ones to decide how often the patient gets drug screened or when – or ever if – the buprenorphine dose should be tapered.

Maybe it’s typical of grand jury indictments to throw everything that could remotely be criminal action into their document, just to see what sticks. But to me, that weakens the overall announcement that the individual who was indicted committed crimes. The real issues get diluted by non-issues, inducing me to think that maybe there are no real issues.

More will be revealed as time goes on and I’ll keep readers updated.

3 responses to this post.

  1. Posted by William Taylor, MD on May 11, 2021 at 11:29 pm

    What a great way to encourage doctors to get their waiver and start treating patients!

    Reply

  2. Posted by Sparky on May 12, 2021 at 4:37 am

    Typical governmement,cops and dea nonsense,I so hope the drs get exonerated and the prosecutors have to repay these drs for all this nonsense,it sounds like they have no case at all,got them a big headline and now they can’t make nothing stick,typical dea crap in my opinion,I hope this dr gets his practices back and keeps treating patients,if he can get him a good lawyer they will beat this and make the feds look like the jackasses they really are

    Reply

  3. Posted by S on May 12, 2021 at 2:21 pm

    I’m also not a lawyer, but I’m a chronic pain patient on methadone with Medicaid and have had a few experiences that *may shed a little light on the strange charges regarding cash payments and Medicaid (filling the prescriptions at the pharmacy after paying cash for the office visit). I know each state has different policies regarding Medicaid. I agree- it does sound like the DEA is digging deep into anything that might possibly be related to a real charge in an effort to make something stick and justify their efforts against this doctor. (Yet somehow people still wonder why so many doctors aren’t interested in going into medication assisted treatment.)

    In 2017 I had just received the results of my MRI and though my doctor ended up scheduling immediate spinal fusion surgery, he first wanted me to get an epidural spinal cortisone injection. To everyone’s (except my own) surprise, Medicaid denied coverage and I was told I couldn’t even pay out of pocket for any or all of the cost of the injection. Apparently there’s some stipulation that patients with Medicaid can NOT pay cash for any procedure that’s billable to Medicaid EVEN if it’s denied to said patient.
    Under the same set of policies I think must be called “Tier-Crazy/Rampant Ignorance”, Medicaid patients at my methadone clinic (WV) cannot under any circumstances contest a positive UA, whether the patient believes it’s inaccurate, a false positive, etc. WV only just approved methadone as a Medicaid-covered treatment starting early 2018. One of the first things we were told was that we could no longer personally pay to have a contested UA re-tested, for the same reason that I couldn’t pay for my cortisol injection. UA’s are covered by Medicaid, but only one random a month, and because the billing code for the UA is a covered Medicaid treatment/procedure, a patient WITH Medicaid cannot pay out of pocket even to have the UA retested.
    I could be totally off base, but it seems to me they have a problem with the fact that this doctor was accepting cash from Medicaid patients for their office visits, and those same patients then took their prescriptions to the pharmacy to be filled and billed to Medicaid (because obviously). Maybe there’s a policy in those stares that if it’s covered by MC, the prescriber has to accept it? I don’t know, but it all sounds completely regressive towards the goal of making MAT more accessible to the ever-growing population of those that so desperately need it.

    Reply

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