Strik­ing a bal­ance

OIG’S chief coun­sel talks kick­backs, EHR up­cod­ing and ACO waivers

Modern Healthcare - - THE WEEK IN HEALTHCARE -

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:

Mod­ern Health­care:

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

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