Subscribe to The Podcast by KevinMD. Watch on YouTube. Catch up on old episodes!

In this episode, family physician and author of Burden of Pain: A Physician’s Journey through the Opioid Epidemic, Jay K. Joshi, with his extensive experience defending physicians, illuminates the pressing need for compliance in navigating the escalating scrutiny from federal and state regulators. Join us as we uncover the intricate web of compliance challenges within the legal system and explore how physicians can be at legal risk without adequate safeguards in place.

Jay K. Joshi is a family physician and author of Burden of Pain: A Physician’s Journey through the Opioid Epidemic. He is also the editor-in-chief of Daily Remedy, which is on Facebook, YouTube, X @TheDailyRemedy, Instagram @TheDailyRemedy_official, Pinterest, and LinkedIn.

He discusses the KevinMD article, “Shielding physicians: the untold story of legal preparedness.”

Our presenting sponsor is Nuance, a Microsoft company.

Together, Microsoft and Nuance are leveraging their rich digital technology and advanced AI capabilities to tackle some of health care’s biggest challenges. AI-driven technology promises to revolutionize patient and provider experiences with clinical documentation that writes itself.

The Nuance Dragon Ambient eXperience, or DAX for short, is a voice-enabled solution that automatically captures patient encounters securely and accurately at the point of care. DAX Copilot combines proven conversational and ambient AI with the most advanced generative AI in a mobile application that integrates directly with your existing workflows.

Physicians who use DAX have reported a 50 percent decrease in documentation time and a 70 percent reduction in feelings of burnout, and 85 percent of patients say their physician is more personable and conversational.

Discover AI-powered clinical documentation that writes itself. Visit https://nuance.com/daxinaction to see a 12-minute DAX Copilot demo.

VISIT SPONSOR → https://nuance.com/daxinaction

SUBSCRIBE TO THE PODCAST → https://kevinmd.com/podcast

RECOMMENDED BY KEVINMD → https://kevinmd.com/recommended

GET CME FOR THIS EPISODE → https://earnc.me/NeMJxi

Powered by CMEfy.

Transcript

Kevin Pho: Hi, and welcome to the show. Subscribe at KevinMD.com/podcast, get CME for this episode by clicking on the CME link in the show notes. Today on the show we welcome back Jay Joshi. He’s a family physician, and he’s the author of Burden of Pain: A Physician’s Journey through the Opioid Epidemic. Today we’re going to talk about the KevinMD article “Shielding physicians: the untold story of legal preparedness.” Jay, welcome back to the show.

Jay Joshi: Well, thank you for having us. It’s always a pleasure.

Kevin Pho: So Jay’s been on in the past. Go to KevinMD.com/podcast to search his name and prior episodes. But today let’s jump right into the KevinMD article that you co-authored, “Shielding physicians: the untold story of legal preparedness.” For those who didn’t get a chance to read your article, tell us what it’s about.

Jay Joshi: It’s really highlighting a paradigm shift that I believe is starting to take place but is not quite as apparent as it should be. And that is physicians taking an active role in the compliance of their medical practice, meaning they’re delving fully into the regulatory component of their practice.

What you notice is that you have many physicians who have this notion that, if I didn’t do anything wrong, if I’m just practicing according to the clinical standards, I should be fine. But what they don’t understand is that regulators and administrators tend to look at the oversight of medicine through different interpretations, through different civil and criminal statutes and guidelines.

As a result, physicians should take an active role in maintaining a compliance system, so that even when they’re within the bounds of their clinical practice, they understand how those outside of the clinical realm would perceive their medical practice.

Kevin Pho: So when you say there are some compliance issues that affect physicians and they should be more involved in that whole process, what are some specific examples of how that would play out?

Jay Joshi: Sure. Let me start by giving the most egregious examples, and then we can talk about some more realistic examples.

Some of the more egregious examples would be state AG offices that go after abortion providers, that try to find criminal charges or civil charges based on documentation oversight, where inevitably the law breaks down to finding some compliance related measure, whether that’s documentation or lack thereof, or some sort of procedural motion that should have taken place, like getting a patient signature when you didn’t have time to, and then assert intent onto that, assert some sort of state of mind onto what would be otherwise mundane clinical procedural outcomes.

Many physicians don’t understand that, because they don’t see that as germane to their clinical practice. Yet for investigators and regulators, that is the in for the investigations. And so I want physicians to really understand that the clinical practice needs to have a certain compliance methodology that’s led by the physician, so that you can protect yourself in the event that something like this happens.

Let me give a more realistic scenario. We all know about the abortion providers that seem to be targeted in certain states by certain politically ambitious prosecutors. But more realistically, what you start to see is that many physicians get investigated based off of complaints, the quote unquote anonymous complaints. Now, we can talk about the legitimacy of that, but that’s a conversation for another time.

But the point being is that many complaints form the genesis of an investigation into a physician. Physician X, it is said, well, he doesn’t spend enough time with the patients, well, he doesn’t perform enough of a physical exam.

In the minds of a physician, if you’re a primary care physician, or if you’re a specialist, and you’re seeing a patient for the first, second, third time, you rely on the documentation. You may feel like certain physical exam components may not be necessary because of the documentation that you have, or you may feel like it’s redundant to the point where you don’t need to just go over and over with the physical exam.

But what happens is, from the regulatory standpoint they may say, well, you did XYZ services, you billed ABC ICD codes, where is the justification for that? Or, you didn’t feel like it was clinically necessary, well, it was apparently legally necessary.

So I want physicians to really understand that a compliance system, and the importance of having a compliance system, is not about being a good or bad physician, not about saying, quote unquote, if I didn’t do anything wrong I don’t have anything to worry about. It’s about understanding that the regulators and administrators, whether at the state AG level or at the federal prosecutorial level, don’t look at medicine clinically. They look at it through the litigious veneer of documentation, and they find ways to assume intent based on mundane aspects that you may feel are outside of the realm.

Kevin Pho: So whenever I hear about compliance, like a lot of physicians, I’m sure they just think of it as forms to fill out, or questionnaires they have to go through after watching some type of webinar. And it’s really just something that they hate doing, because it’s just an extra thing that they have to do. But you’re saying that obviously these types of compliance processes are tremendously important to a physician’s livelihood, and it protects them going forward.

Jay Joshi: I’d put it to you this way. If you were a physician and you own your own practice, you would consider payroll to be important, but not as important as providing good clinical care. Good clinical care is paramount, but payroll is also important, because your staff needs to be paid and you need to compensate them accordingly.

I would put compliance in the same bucket. Compliance is not going to supersede good clinical care, that’s paramount, we’re not discussing that. In many ways I want to avoid this comparative analogy where people always are like, well, compliance is not as important as clinical care. Of course it’s not as important as clinical care. Doesn’t mean it’s not important in absolute terms. And that’s how we need to look at compliance.

Don’t look at it as like a box to check off, or something to fill out in terms of paperwork and what have you. Think of it as germane to your own clinical practice. So if you work for a health care system, you wouldn’t just round on the patients and then say, oh well, I did my job clinically, why should I worry about the documentation? No, you understand that documentation is part of working for a health care system, and there’s procedures and protocols for that.

Think of the compliance system as a way of recognizing that there are forces in health care that are non-clinical that have an impact on your ability to practice medicine. Be proactive in recognizing how those forces look at your clinical care and will oversee your clinical care. And when you look at it in that lens, having a compliance system is really the ultimate safeguard against inappropriate interventions or investigations.

Kevin Pho: So can you tell us a story, case study, or scenario, perhaps, where a physician did not have an appropriate compliance system and subsequently got in trouble with the authorities?

Jay Joshi: Yeah, I’ll actually give an example about a very large cardiology practice in the area where I practice, in Indiana. There were physicians who ran, I believe, probably the largest interventional cardiology practice that was not affiliated with a health care system.

A complaint was filed that they were performing unnecessary procedures, that there’s no way this practice could have grown this big if they were doing everything quote unquote legitimately. Well, then they got investigated.

And essentially what they found was an interpretation of the imaging, of some of the documentation that’s needed to justify the actual procedure itself, whether it’s a form of an ultrasound or a CT scan, whatever the diagnosis may be, we don’t need to get into those details. But what they found is that the assessment of those imaging studies sometimes skewed in favor of performing a procedure.

Now, you can say, well, perhaps those cardiologists were being a little bit aggressive, and I think that’s a fair assessment to make. But I also believe that if those cardiologists would have known, this is how you are going to be looked at, this is how regulators are going to investigate your practice, then they probably would have documented a justification around how they interpreted the ultrasound, the CT scan, to then proceed with the actual procedure itself.

Now, inevitably nothing happened to any of those cardiologists. I believe one cardiologist simply just retired, didn’t want to deal with it at that point. But from what I understand, the legal fees and dealing with all of that was around seven figures. And so basically their practice was decimated, because if you have a seven figure hit in a manner of just 18 to 24 months, no practice is going to be able to survive that.

So it was really a Pyrrhic victory, in the sense that they were able to overcome the investigation, but the cost of overcoming it was just insurmountable to their practice overall. I think two of them have now joined other cardiology practices, one is now part of a health system, and one just retired, as I mentioned earlier.

But what I want to mention in that example was that the paradigm between diagnosing a patient, performing certain imaging studies, and then determining whether to proceed with a certain procedure, that all requires certain steps in documentation. How you look at that clinically to determine what the next steps are is very different from how a regulator would look at that. What they’re looking at is, did that decision skew in the favor of something undue financially?

Now, as a physician you’re not thinking, hey, this patient here, 65-year-old African American male, X number of comorbidities, yeah, let me make an extra few dollars off of you. You don’t think like that. Instead you think, OK, what is the clinical risk to benefit and how can I proceed?

So the paradigm, the calculus, in how you’re making that decision is different than somebody who’s looking at it from a regulatory standpoint. You’re looking at clinical benefit, they’re looking at undue advantage gleaned. And that’s why you need to have a compliance system, to recognize, this is how other people could view my clinical decision making.

Kevin Pho: Now, for those physicians without an adequate compliance system, are they mainly private practice physicians? Do physicians who work for established medical institutions or hospitals, can they just rely on the hospital’s or medical institution’s compliance system?

Jay Joshi: Unfortunately not, in my experience. What I’ve found is that there is this tendency to isolate a physician if he or she is in any sort of legal or regulatory jeopardy. Now, that can include a physician that has his or her own independent practice, or works for a health care system itself.

Keep in mind that the hospital that employs you has very strict provisions and guidelines that protect the hospital, protect the employer over the employee. So if a physician is making certain clinical decisions, the physician is almost inevitably at a disadvantaged position relative to the hospital in terms of its ability to protect itself legally.

Now, I’m not just casting aspersions on health care systems or hospitals as a whole. I’m simply talking about incentives and how incentive structures play out in the face of regulatory oversight.

What physicians who work for large health care systems, large corporate entities, can do is turn to their HR, which has certain provisions and certain protections that physicians employed can benefit from that independent private practitioners cannot.

So to answer your question, are physicians employed automatically protected relative to independent primary care physicians or those in private practice as a whole? Not necessarily. But there are other venues where employed physicians can utilize HR, can utilize other means, to protect themselves.

But ultimately what it comes down to is, how can you justify your clinical actions, your clinical decisions, in a way that somebody who’s looking at it from a totally non-clinical lens can then say, I agree with your assessment? And that’s less about who you work for, what institution you work for, or the nature of clinical practice, and more about the provisions you take as an individual.

Kevin Pho: So walk us through the process of a physician wanting to establish an appropriate compliance system. What exactly does that take?

Jay Joshi: The first step is, you want to get those individuals who have legal expertise in that. I’ve worked with certain individuals, I’m actively working with a lot of patient advocacy and physician advocacy groups, to find individuals who understand the litigious veneer that covers health care. You want to talk to those individuals.

What I like to do, and because I’m very cost conscious, is I try to keep everything at a very minimum. What I do is, I just write out the entire workflow of my clinical practice. How I see patients, how I interact with staff, how I make diagnoses, how I follow up the subsequent treatment. And then I send those workflows to a consulting agency that can help me build out the compliance system, and say, let’s fix the price, just build out the model for how the compliance system should work, and then I will create the documentation to then support all of that. I will build all of that out.

Is it painstaking? Yes. Is it extremely laborious? Yes. But what I can do then is, I am in control of how I created a compliance system. So should something ever happen where my intent is questioned, or my decision making is questioned, what I can say is, I drew out the entire workflow, I created the framework for how the compliance system should work out, and then I documented how I make decisions and how I proceed with clinical care. Here you go.

And what that does is, it provides the legal infrastructure where somebody without a clinical background, who may have an incentive, just like you have an incentive to care for your patients, they may have an incentive to catch a number of physicians or a number of investigations per year, but look at it and say, well, he’s serious about a compliance system, he’s willing to push back and justify his or her clinical decision making.

And I know that many times physicians find themselves in this bind where they’re like, it’s just not worth the cost, like, I’m not going to pay $25,000, $30,000 for a compliance system, because the probability adjusted need for that may not be there. And in many cases that’s correct.

But if you do it the way I’m suggesting, where you just have the framework and then you yourself build it out, you can save on cost quite significantly. I mean, I’m talking like $5,000 or less. Just find individuals, tell them, I’m willing to do all the work, give me the framework for the compliance system, allow me to build it all out, just verify everything is done correctly, and then we can go from there.

And I think that does two things. One, it creates the exercise in the mind of the physician that this is important. And then two, it’s a low cost way to understand how those who may be investigating your practice will perceive you, should something arise.

Kevin Pho: We’re talking to Jay Joshi. He’s a family physician. And we’re talking about the KevinMD article “Shielding physicians: the untold story of legal preparedness.” Jay, as always, we’ll end with your take-home messages to the KevinMD audience.

Jay Joshi: The take-home message is that there are cost effective ways to protect yourself legally, and the notion that if you are doing quote unquote nothing wrong, no investigator or regulatory agency will come after you, is now false.

I think that the legal encroachment into health care has gone well beyond what is appropriate, and has become pervasive enough where that notion of, if I didn’t do anything wrong nothing will happen, needs to go out the window.

What I would suggest is that physicians proactively look at their practice through a non-clinical veneer and recognize how investigators and regulators will look at their practice, so that they can be prepared in advance.

Kevin Pho: Jay, as always, thank you so much for sharing your perspective and insight, and thanks again for coming back on the show.

Jay Joshi: Thank you.