Striking a balance
OIG’S chief counsel talks kickbacks, EHR upcoding and ACO waivers
As chief counsel to HHS’ inspector general, Greg Demske drives the office’s enforcement priorities and decisions. He also leads the office’s efforts—in talks, advisory opinions and other industry guidance—to explain where the office comes down on an extremely complicated set of laws and regulations intended to scrub fraud and financial conflicts of interest from federal healthcare programs. Modern Healthcare reporter Joe Carlson spoke to Demske after his recent appearance in Chicago at the American Bar Association’s conference on physician legal issues. Here is an edited excerpt:
You mentioned the idea that physicians are often not aware of the impact of interactions that they have with industry on their own behavior. Greg Demske:
One of the things we at the Office of the Inspector General are always interested in is the potential for the distortion of medical judgment, when physicians are receiving money from industry, pharmaceutical companies, device manufacturers and oth- ers in the healthcare industry. And we have responsibility under the anti-kickback statute to pursue violations of that statute.
The statute really is designed to address several ills including overutilization, steering of patients, lack of competition, but one of the essential things that it tries to get at is the distortion of medical judgment. And there are a lot of payments that could distort medical judgment that don’t rise to the level of a crim- inal or civil or administrative kickback, but may affect a physician’s judgment. And there has been a lot of cognitive science and social science over the last 10 to 15 years that shows that physicians, like other human beings, are influenced even by small gifts and amounts of money that they received.
We all have an unconscious desire to reciprocate when we are given things, and the studies show that physicians think that that may affect their peers, but largely don’t believe it affects them. And there is a recent study that came out last year that shows that the fact that pharmaceutical companies may be paying a physician reduces the level of trust that patients have in those physicians, and we think that is a serious issue that physicians should consider. MH: Does that affect your enforcement choices? Demske:
When we are looking at enforcement