Risk Management in the Age of Big Data and the Opioid Epidemic

In 2017 The Department of Health and Human Services (HHS) declared the opioid epidemic as a public health crisis. The improper prescribing and misuse of opioids has resulted in over 28,000 deaths and more than 2 million people suffering from opioid use disorder. The pervasiveness of the problem has resulted in increased criminal enforcement, increased use of the False Claims Act, and the creation of opioid specific task forces by the Department of Justice and the Attorney General. To increase the likelihood of success with these endeavors, the government has turned to “Big Data” to assist with the identification of trends and development of evidence. 

Providers from across the health care spectrum could encounter a patient or situation that would benefit from the prescription of an opioid or other controlled substance. In order to avoid being the target of undesired scrutiny, providers need to be aware of the change in enforcement trends; but more importantly, how data can be used to direct investigative resources.

Big Data – What is it and How is it Used?

The dollar amounts associated with health care fraud have helped push regulators and law enforcement towards a more data driven approach to identifying potentially fraudulent behavior. This reliance on “Big Data” for the development of investigations has been keenly adopted in the fight against the opioid epidemic. While many people – and providers – may be aware of the use of analytics as an investigative tool, they may not be familiar with all the data points are available to investigators or how it can be used against them. The data used within the context of these case can typically be broken down into two sets; first, data that illustrates an opioid has been prescribed and second, data that may help evidence the potential falsity of the prescription.  Several news stories and opinion pieces have done an excellent job of highlighting how the data directly related to the prescription is used to identify physicians, patients, and pharmacies as targets for investigation; as a result, I would like to focus on the potentially lesser know sources of information that can be used.

There are numerous sources of information outside of the prescription data that can assist regulators and law enforcement with opioid investigations. Most, if not all, of these sources of data fall outside the control of the providers within the prescription chain and can offer valuable insight into the intent of the transaction. 

Numerous health care providers treat patients with conditions related to opioid use. These interactions are captured through claims data and can be culled for useful information by investigators. Hospitals and emergency room physicians often treat patients for overdoses. The nature of the overdose can be identified by the ICD 10 code (diagnosis code) associated with the claim. Multiple diagnosis codes relate to injury by poisoning; specifically, ICD 10 Codes T36 through T50. There are diagnosis codes specifically related to opioid poisoning contained in section T40. A sample of those codes are as follows:

ICD 10 Code & Description

T40 Poisoning by, Adverse Effects of Narcotics

T40.2X1A Poisoning by Opioid, Accidental

T40.2X2A Poisoning by Opioid, Intentional Self-Harm

T40.601A Poisoning by Unspecified Narcotic, Accidental

T40.602A Poisoning by Unspecified Narcotic, Self Harm

Other types of providers help patients with issues related to dependence on illicit and prescription drugs. In fact, HHS has estimated 2.1 million people have been treated for opioid use disorder. Like the overdose claims, mental health claims related to drug dependence can be identified through the diagnosis codes. Mental health and behavior disorders due to psychoactive substance are contained within ICD 10 Codes F10 through F19. Opioid related disorders can be found in ICD 10 F11. Some of the relevant diagnosis codes contained in that section are as follows:

ICD 10 Code & Description

F11 Opioid Related Disorders

F11.12 Opioid Abuse with Intoxication

F11.2 Opioid Dependence

F11.9 Opioid Use

This information is useful to investigators because it can help identify patients that may be abusing the opioids. Investigators can then look to see if the patient continues to receive the same medications in the same amount from the same physician in order to demonstrate the lack of need for the drug. Investigators can also access the medical records from these third-party providers to determine if the suspect physician has been made aware of the overdose or drug dependence. The diagnosis data can be applied, at a macro-level, to identify any providers who have a disproportionate number of patients being treated for these conditions, allowing regulators and law enforcement to more efficiently utilize their limited resources. Furthermore, this information is useful because if the overdose can be attributed to the fraudulent conduct by the provider then the potential penalty for the healthcare fraud resulting in bodily injury increases from imprisonment for not less 10 years to imprisonment for not less than 20 years. 

Outside of the health care industry, investigators can access other types of beneficial information. Law enforcement can use claims data to identify patients that appear to “doctor shop” or receive large quantities of controlled substances, then see whether that patient has an arrest history reflecting drug usage (i.e., possession of a controlled substance or DWI) or an arrest that could indicate a drug habit; like multiple theft convictions or prostitution.  In a state like Texas, investigators can access Texas Workforce Commission records and determine who may be employed by a provider. They can then check that information against the prescription data and determine if large numbers of employees – or family members – are receiving prescriptions for opioids. Like the diagnosis code data, this information allows investigators the ability to narrow the scope of their case and assist them in determining whether the prescription served any legitimate medical purpose or was being diverted by patients or employees.

Finally, investigators can identify the date a patient died, either through the claims data or other means, and compare that to the last date a patient received a suspicious prescription. Investigators can then contact the Medical Examiner’s office in the county where the patient died and request a report of an autopsy – if performed. If the autopsy identifies “Mixed Drug Intoxication” or something similar as the mechanism of death and the suspect prescription as the drug, at a lethal dose, that caused the death, then any potential conviction for health care fraud may result in a penalty being assessed, after trial, of imprisonment for life.

What Can Providers Do?

Providers need to understand that their business and the patients they treat are not encapsulated in any single data set. Law enforcement has access to a myriad of data sources and each one is valuable in the development of an investigation. Providers cannot access every piece of information that those who scrutinize them can; therefore, providers must be extremely diligent when dealing with opioids and other controlled substances. Providers should seek training for themselves and employees on detecting signs of drug diversion in patients. They can look for things like patients that constantly report drugs as lost or stolen and seek to get a substitute prescription. Take anonymous calls about patients possibly diverting drugs seriously and utilize available tools to determine whether the allegation can be true. Implement policies that enforce compliance like periodic POC testing or pill counts. If patients begin to consistently misuse the drugs look to your state’s medical board for guidance on how to appropriately terminate the relationship. Providers and patients may want to seek alternative modalities for the treatment of pain; such as surgery, injections, or neuromodulation. Most importantly, Providers should conduct regular audits of their practice to identify any suspect trends within their own data. Experienced legal counsel can help providers navigate the pitfalls associated with opioid prescriptions and identify patients or prescriptions that may require additional review.

Matt Lawhon, JD is the owner of M B Lawhon Law Firm PLLC where he assists health care providers with a multitude of regulatory compliance matters, payer audits and investigations, and risk management. Prior to starting his career as an attorney, Matt had almost a decade and a half career investigating health care fraud as both a Medicare contractor and Criminal Investigator with the Texas MFCU. 

www.mblawhonlaw.com