Health Care Fraud Blog

When it comes to chronic pain, the current DEA war on pain management leads to a question: How much authority should the DEA have over the treatment of patients? According to the Association of American Physicians and Surgeons, “If you’re thinking about getting into pain management using opioids as appropriate: DON’T. Forget what you learned in medical school – drug agents [from the DEA] now set medical standards.” For more on this click: here.

Chronic pain, pain that lasts longer than 24 hours, affects approximately 25 percent of the U.S. population, that is 76 million people, according to the National Centers For Health Statisitics. Of those that reported chronic pain, 43% reported that pain has persisted longer than a year. More than 26 million people report having persistent back pain. Ouch! (To read more on this, click: here).

The treatment options, depending on the cause of the pain involve invasive measures such as surgery and injections, however such results can be short lived. Also, physicians who practice interventional pain find it difficult to get privileges to perform services at hospitals and have very high malpractice insurance premiums. Chiropractic adjustment and physical therapy are less invasive and less expensive, but for chronic pain are also considered by many patients to be of limited use.

What is left is treatment through combinations of other therapies and prescription drugs. The problem for physicians is that pain medications are being prescribed to help a person get through their day, not to solve the underlying medical issue that causes the pain. Therefore, the analysis is very subjective, a combination of the condition causing the pain, the patient’s history of previous treatment, and the amount of prescription drugs that currently work to ease that patient’s suffering. The challenge to the physician prescribing drugs designed to treat chronic pain, opioids, is to discern how much should be prescribed and when and if a patient should be cut off due to potential abuse.

Here is where the war on drugs encounters the reality of medical practice and pain management. As the advice of the AAPS makes clear, doctors are advised to and many doctors stay away from treating pain with narcotics because they are at risk of prosecution or discipline for doing so even when it is a necessary and valid treatment. Accordingly, there is a narrower and narrower pool of physicians willing to treat pain and do so largely in pain management practices. The result is that such physicians prescribe much more pain medications than ordinary physicians, because those are the only patients they see, those physicians will also likely be more liberal in the prescribing of those medications simply because they are so used to seeing chronic pain.

In comes law enforcement, curiously timing high profile raids on pain clinics smack dab in the middle of the Florida legislative session which ends in several weeks while two competing pain management bills are debated. (To read the proposed legislation, click here and here). Reporters, as they do with every law enforcement crime du jour, breathlessly report about how dangerous and prolific “pill mills” are, never once addressing any reason for the need or treatment of pain. Law enforcement describes how oxycontin pills sold to patients in Florida for $5 end up being sold in Kentucky for $20 on the street, without examining whether those people paying those premiums are merely drug addicts, or patients who cannot get pain treatment in Kentucky due to fearful physicians there.

The DEA, using only the vaguest of regulations, declares that physicians treating pain are criminals, dispensing excessive amounts of medications. The DEA does so without legislating, regulating or providing any guidance on the limitations of such dispensing. For example, if the DEA believes no patient should receive more than a certain amount of oxycontin in a prescription, create and publicly debate such a measure.

There is certainly much that can be debated in the treatment of pain and the prescribing of narcotics, but it is rarely debated, often with the words “pill mill” substituting for actual analysis of a much larger and complex issue. Tragically, many of those issues find their way into criminal courts, with jurors instead of health care officials, debating the medical validity of prescription medication dispensing.

According to an article in the South Florida Sun-Sentinel, at least 45 pain clinics opened in Broward and Palm Beach counties in the past year, while state law makers and state and local law enforcement agencies stepped-up their efforts to put an end to the operation suspected “pill mills.”

In August 2008, 66 pain clinics were open for business in Broward and Palm Beach counties combined. The Sun-Sentinel article reports that according to data available from the Florida Department of Health, the number centers issuing narcotic pain medications currently is more than the times what it was in August 2008 - with 122 in Broward to 122 and in Palm Beach County to 108.

Pain clinics “are proliferating despite our efforts," Broward Sheriff Al Lamberti said last week, after state and federal agents executed search warrants at three pain clinics owned or controlled by Christopher and Jeffrey George in Palm Beach County. The Georges' homes were also searched.

No arrests have been made yet, however, a federal law law suit has been filed in U.S. District Court in West Palm Beach. According to the law suit, three of the Georges’ clinics collected $14 million last year and dispensed more than 2.1 million pills. [To read the law suit, click: here.] Additionally, five doctors who worked at the clinics have had their DEA numbers to prescribe pain medications suspended. The doctors can either voluntarily agree to the suspension or can challenge the suspension before a DEA Administrative Law Judge at a hearing scheduled for May.

Independent sources close to the investigation indicate that patient files were properly documented, regular MRI's were required and prescriptions that issued were 100% medically necessary. From time to time, patients who were suspected of phony symptom ology were discovered, refused treatment and escorted off the premises. If you or someone you know has ever suffered from debilitating pain, then no one has to tell you that life can be pure hell without taking pain medication just to get through the day and attempting to perform even the simplest of tasks. The real tragedy in the "gung-ho, rah, rah" attitude of law enforcement targeting pain clinics, is that the overwhelming majority of patients have well-documented injuries requiring pain medication for treatment. These legitimate pain sufferers are the forgotten "victims" who unfortunately wind up as unintended by-product caught in the overreaching net of law enforcement, much like innocent dolphins caught in the nets of profit-driven commercial fisherman.

Palm Beach County and several cities in both counties have temporarily banned new pain clincs, reported by the HCFB here and here. "Palm Beach County is ahead of us [in law enforcement efforts aimed at detecting criminal activities at pain clinics]. We're [Broward County is] trying to play catch up now," Lamberti said. "On the street, [there are] too many targets, not enough deputies. We're really trying to be hard on it because it causes crime in the community. We think they know we are serious."

To read the Sun-Sentinel article, click here.

The City of Delray Beach, Florida, is considering requiring pain management patients to give their fingerprints so those fingerprints can be used to immediately electronically check against a database to make sure the patient is not doctor shopping. That sounds great, but there is currently no electronic patient fingerprint network or database anywhere and for Delray Beach to create and maintain one itself it would cost more than they likely have budgeted for much of the services the city provides.

To read more, click here.

One bill pending before the Florida legislature proposes requiring that all physicians issuing a prescription for Schedule II and III controlled substances use a “multi-state electronic prescribing network” to verify whether a patient is doctor shopping. Unfortunately, no such network exists for controlled substances. In addition, the statute does not provide any way to fund it except for grants from unknown sources. For more, click here.

In an intriguing development in the war on pain, Palm Beach County, Florida, passed an ordinance designed to prevent new pain clinics from opening up and are intending to pass ordinances to curb the practices of existing pain clinics. This is a somewhat unusual development and may form the basis for legal challenges. The county commissioners, with some harsh words for pain clinics, are apparently attempting to regulate the medical profession through zoning regulations.

To read more, click: here.

As part of the recent focus of a task force in the Tampa area, a physician and a physician’s assistant who owned and operated 8 clinics were arrested for health care fraud and drug trafficking charges.

The clinics, Neurology & Pain Centers, operated in Tampa , Lakeland , Sarasota , Orlando and Jacksonville . State officials say that prescription drug overdose deaths are now more prevalent than overdose deaths for street drugs such as heroin and cocaine. The Tampa area, according to State officials, is responsible for 25% of those deaths. The allegations contained in the indictment include that the PA, Troy Wubbenna, offered free drugs to a 17 year old to recruit other high school students and that the physician, Dr. Jeffrey Friedlander, signed blank prescription pads so that drugs, particularly Oxycodone and Oxycontin, could be dispensed when he was not around.

To read more, click here.

The federal agents arrested 20 people for a Palm Beach operation that engaged in buying up oxycontin from Broward County pain clinics and pharmacies and shipping those drugs to Tennessee, Kentucky, West Virginia, Virginia and North Carolina . The operation had been going on for several years, with participants visiting up to five pain clinics a day to obtain drugs.

To read more, click here.

As a follow up to last week’s posting on pain management enforcement, we indicated that investigations concerning abuse in pain management focus on the treatment as opposed to a fraudulent claim.

There is no crime of practicing bad medicine; physicians in these cases are charged under narcotics laws for trafficking using the same laws as are used for drug dealers. Under federal law, that a physician issued a prescription for a legitimate medical purpose is only a defense to a charge of narcotics trafficking and not an exclusion under the statute. In many senses, every time a physician issues a prescription or dispenses a controlled substance, the physician is making a judgment that subjects him or her to potential criminal liability.

The question generally asked by investigators is whether the physician has given up his role as a physician and turned into a narcotics trafficker. In pain management, the propriety of issuing a prescription and the medical judgment is what is called into question. Often when health care providers are investigated or arrested for fraud or abuse, not much is heard from actual patients.

Interestingly, the reaction to search warrants being issued at your doctor’s office can vary, it appears the physician at the heart of the investigation, Dr. Sam Jahani, does have some supporters and detractors among his patients. The Denver Post; Channel KJCT8 and NBC 11 News posted some of those reactions below. The NBC11 article features a patient who says the physicians caused her and her husband to be drug addicts, the others feature some positive reactions by patients.