Wednesday, February 19, 2014

Regulation, Suboxone Clinics & Unintended Consequences

As we all know, prescription drug abuse is a significant problem in Kentucky; so significant that the Kentucky Legislature enacted the toughest and most cumbersome requirements for prescribing controlled substances in the United States.  By authorizing the Kentucky Board of Medical Licensure through its regulatory process to promulgate additional standards for prescribing, Kentucky’s physicians have become the most regulated and policed of any in the country and probably the entire Western Hemisphere.  In 2013, the number of Kentucky deaths from overdoses of controlled substances actually declined for the first time in many years.  Some have suggested that the decline is a direct result of the stringent prescribing regulations, but this is pure speculation.

A distinct possibility exists that the decline in overdose deaths is driven by Kentucky doctors who have taken on the management of addicted patients by adding recovery services to their practices or establishing separate addiction recovery clinics, often called suboxone clinics (named for the medicine often used to treat substance addiction).  Because the FDA limits the number of patients a physician may manage with this medication to 100, it is not economically viable for a single physician to establish a full-time practice that solely provides addiction recovery services. Thus, these clinics have to be a cash operation, and often are a sideline practice.  While the risks of managing these troubled patients are tremendous, suboxone clinics provide a great service for those who want to address their problems.  Unfortunately, for Kentucky physicians, providing addiction medicine services has just become more complicated.

In keeping with the requirements of the Affordable Care Act, Kentucky’s Department of Medicaid Services has expanded its coverage of physician services for managing substance disorders and established fee schedules.  Of course, the individuals who have the most severe drug addictions are those whose lives are out of control and are likely to have lost homes, jobs, and families.  These same individuals are likely to qualify for Medicaid, particularly since the Medicaid expansion.  Providing recovery addiction services for Medicaid patients, particularly suboxone services, can allow a patient to resume a normal and productive life while undergoing treatment.

Rather than incentivizing physicians to provide these important addiction medicine services, the Department of Medicaid has established a remarkably low fee schedule payment of $21.53 for physicians to treat these substance disorders.  Physicians cannot afford to treat these patients at that fee, much less provide the supporting services such as assessment, development of treatment plans, counseling and the monitoring that lead to a successful recovery.

As if the miniscule fee schedule payments were not enough of a hindrance, there are significant legal ambiguities surrounding the responsibilities of a physician who participates as a Medicaid provider in a full-time practice, but also provides part-time services for a non-Medicaid addiction medicine practice.  These dual-practice physicians are likely to stop providing substance disorder services to Medicaid patients, even when the patient is willing to pay the cash fee.

The establishment of the Medicaid benefit for substance disorder treatment should provide a tremendous opportunity for Kentucky’s poor patients.  Instead, the unreasonably low fee payment assures that fewer Medicaid patients will be treated.  While there are some ways that physicians can lower the risk of violating obligations to the Medicaid program, the path is not risk-free.  Documentation and the array of services offered may lower the risk of violation of the Medicaid provider contracts and regulations, but the issue has not been tested.

It is imperative that Kentucky physicians continue to provide these important services if the problem of prescription drug abuse is to be addressed.  In fact, suboxone clinics may play a larger role in reducing Kentucky overdose deaths than the newly-minted regulations for prescribing practices.   Because of low reimbursement and risk of running afoul of Medicaid law, Kentucky physicians may soon drop these important services.  If this happens, the temporary decline in overdose deaths will likely be short-lived.  Once again, the law of unintended consequences strikes!

Lisa English Hinkle
McBrayer, McGinnis, Leslie & Kirkland, PLLC
Lexington, Kentucky

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