From his opposition to the Affordable Care Act to his prosecutions of Medicaid fraud, Georgia Attorney General Sam Olens has been very involved in... Health and the law — an interview with Georgia’s attorney general
Georgia's Attorney General

Georgia's Attorney General

From his opposition to the Affordable Care Act to his prosecutions of Medicaid fraud, Georgia Attorney General Sam Olens has been very involved in health care issues in the state.

Georgia Health News recently sat down with Olens in an exclusive interview regarding his views on health care.

He discusses his fight against “pill mills,’’ his views on health reform and its regulations, and his office’s anti-fraud work, including a current case involving abortion.

Olens also touches on rural hospitals’ challenges, tort reform, and his campaign for lawyers to collect food for poor children in the state.

 

Q: Fighting against ‘‘pill mills’’ is a legislative priority of yours. Talk about what needs to be done with the problem of these prescription drug sales.

A: Florida had a huge problem, and about two years ago, they passed legislation that significantly reduced the number of medical providers who were selling large quantities of oxycodone.

Ever since Florida’s improvement, many of those bad actors have moved into our state. It is expected that once Georgia passes legislation, those bad actors will move into the next state.

We have the blessing and the curse of such a great [transportation] infrastructure here, between Hartsfield-Jackson [Atlanta’s international airport] and I-75 and I-85 and I-20. So it’s easy to transport Class II and Class III drugs [controlled substances].

The legislation seeks to provide the medical board and pharmacy board the necessary authority to wipe out those bad actors.

We’re not trying to stop reputable doctors who treat intractable pain from doing so. We want those patients to have the appropriate medical and pharmacy care.

But when you see a place that’s renting by the month, [where cars in the parking lot have] predominantly out-of-state plates, when the doctors are not really issuing many prescriptions, they’re having a cash business inside the building – we want those actors out of our state.

Q: There’s legislation on this currently introduced in the Georgia House.

A: House Bill 178. The chief sponsor in the House is Tom Weldon, and it has approximately 45 co-sponsors. The bill specifically provides for the medical board to license and regulate providers [of pain management clinics].
Q: Last year, a similar bill failed to pass. What’s different this time?

A: [Last year’s] bill was ready for passage, but it was the last week of the [legislative] session. There was an education component and it was necessary to hold meetings to bring everyone together – the medical community, the pharmacy community.

And the rush is not to pass a bad bill. The push is to pass a good bill.

We frankly ran short of days to accomplish that. It wasn’t for lack of effort. It was for lack of time.

The bill, as filed this year, is exceedingly similar to the last version from the session. We certainly have very optimistic expectations that the bill will pass this year.

Q Is it similar to the pill mill law in Florida?

A: Yes. There are differences in our states’ constitutions that mandate differences in the legislation. But as a general statement, yes.

Q: Your administration seems to place a high priority on fighting Medicaid fraud, based on the number of press releases on prosecutions we get from your office.

A: I would suggest to you that some of that is simply the difference in [information policy] of administrations. By that I mean our office puts a lot out on the website. When I was running for AG, one of the typical questions was, ‘‘What does the AG do?’’ I think part of the way I respond to what the AG does is through these press releases, on pleas, trials, convictions.

From a process perspective, I think we have placed a higher emphasis on the Medicaid fraud unit. But that should in no way, shape or form say that prior Attorney General Thurbert Baker did not put an emphasis on it, too. We’re putting more out there because we think the public learns from that information.

I think frankly it also has a deterrent effect on bad actors, in telling them we’re going to take [their offenses] seriously and we’re going to take appropriate action, whether it’s a civil recoupment or criminal conviction.

Q: Do you think fraud is currently being contained, or are the prosecutions uncovering just the tip of the iceberg?

A: I think it’s the tip of the iceberg. And I think it’s the case nationally. You can get many quotes from the Department of Justice and HHS on the massive amounts of Medicare fraud. I think the same can be said for Medicaid fraud. We work closely with our three U.S. attorneys in the state, with our federal and state law enforcement partners, and I think there’s more we can and should do.

Q: There’s a Medicaid fraud case involving abortion that’s getting headlines. You’re prosecuting that case, even though a state administrative law judge found the physician had not committed fraud. Why are you pursuing that case?

A: Let me answer in general, because it’s a pending matter.

There are two prosecutions, not one. [Also,] we didn’t represent DCH [the Department of Community Health, the state’s Medicaid agency] in the administrative hearings referred to in these cases. We are involved in the criminal context, not the administrative context.

This is not a political case in any way, shape or form. It’s a Medicaid fraud case. The Hyde Amendment is very clear on the use of Medicaid dollars [prohibiting the use of federal dollars for abortion].

These cases didn’t originate in my office. They didn’t originate at the Medicaid fraud unit. They originated at DCH, the state agency …

These cases are generally referred from the state agency or other sources, and moved to the Medicaid fraud unit.
Q: In your mind, there were Medicaid funds spent for abortion?

A: Let me rephrase the question. We allege that Medicaid funds were spent in violation of federal law.

The issue is not abortions. The issue is compliance with federal law relating to Medicaid.

Q: So it could have been anything – Medicaid funds being used to pave roads, for example?

A: We’re treating this case as we would treat any Medicaid fraud case. There’s nothing special or different about this matter than anything else in the Medicaid fraud unit. It’s not a higher priority or a lesser priority.

Q: You were very much out front in your opposition to the Affordable Care Act, the health reform law of 2010, and led the state’s legal fight against it. Talk about the legal reasons for your opposition.

A: When the country was first founded, the first constitution was the Articles of Confederation, which was very weak on national power and gave predominant power to the states.

Thereafter came our current Constitution. And there was a dispute at that time about whether the federal government had paramount power, or the states, which led to the Bill of Rights.

Never before had Article 1, Section 9, of the Constitution, the Commerce Clause, been used regarding failure to buy a product, and call it commerce [the ACA’s mandate for most individuals to obtain health insurance or face a financial penalty].

So I would suggest to you that while your interest area is health care, and that’s the purpose of your publication, the objection from the [state] attorneys general was not specifically about health care, it was federal overreach of the Commerce Clause.

Now we were told we were going to lose on the Commerce Clause and lose on the spending clause about the expansion of Medicaid and that we would win on the tax clause because the president and Democratic leadership in Congress denied it was a tax because they wouldn’t have the 60 votes in the Senate.

Of course the exact opposite transpired. We won on the Commerce Clause and the spending clause but lost on the tax clause when Chief Justice Roberts opined, because principally [he reasoned] if the individual mandate did not carry with it criminal penalties, it could still be viewed as a tax.

We were involved in the case not due to health care, but due to the fact that we felt the president and Congress had exceeded the powers given to them in the federal Constitution.

And many of us think for decades that states have looked the other way and not maintained or sought to maintain state sovereignty.

Having said that, there are still numerous issues. There are thousands of pages of forthcoming regulations still due to the Affordable Care Act. There are significant issues related to the default federal health insurance exchange in regard to the state. There are significant issues on how HHS will deal with the ability of states to not accept expansion on their terms . . .

You have had Governors Jindal [of Louisiana} and Perry [of Texas] opine that if [Medicaid] was given as a block grant, they would be much more inclined to take the expansion.

Q: Governor Deal has also supported Medicaid block grants.

A; That’s true. There are numerous legal issues remaining both on the employer mandate as well as the expansion of Medicaid. As we read forthcoming regulations, it will determine how many if any additional lawsuits [will be filed] by the same states that filed the initial lawsuit against the Affordable Care Act.

Q: So this issue is not going away?

A: Look, the majority of the court held it was constitutional. The president was re-elected. So the Affordable Care Act is a reality. I believe strongly in the rule of law. It is a law in our country, one that I need to follow, like all other laws.

At the same time, there are other elements of that law where federal regulations are still forthcoming. Depending on those regulations, there may be additional disagreements with HHS that merit litigation.

Q: Your position appears to be one of monitoring the [health reform] law.

A: We’re closely monitoring all of the regulations. We frankly did not agree with HHS on the religious liberty issue [mandating most employers to offer free contraception].

. . . I was recently at Clayton State University, and former Gov. Roy Barnes and I were on a panel, and Barnes [a Democrat] disagreed with how [the Obama] administration was handling that issue, too. Folks of very different backgrounds had large concerns with the regulations on the issue.

Q: Will you join in the lawsuits against the employer requirement on birth control?

A: Potentially in the form of amicus briefs.

Q: Did the president’s recent compromise on the contraception issue change anything?

A: It was a little broader than the first version, and I think many folks are now trying to chew on it, and to decide whether further action is necessary. Clearly from a perspective of a business such as Hobby Lobby, the change did not affect them at all. So I expect their appeals to continue.

Q: Certificate of Need — the state regulatory process of health care facilities — has been controversial at the very least. The Republican Party stands for less government regulation. What are your thoughts about CON?

A: To be honest, I’m reluctant [to discuss it] because there’s pending legislation across the street [at the Capitol], and depending on what they pass, I’m there to defend it, whether I like it or not.

Clearly there’s a lot of litigation between various providers at the moment that we can all agree isn’t healthy.

We can also agree that we have too many hospitals in danger of closing. And I think there is a very valid concern that the increased cost of the president’s health care act is adversely affecting those rural hospitals and their ability to stay in business.

And one of the things that concerns me as the state’s lawyer is the fact that we have areas of the state that have insufficient trauma and labor and delivery services now. An unintended consequence of the ACA [may] make it worse.

Q: If the state doesn’t expand Medicaid?

A: We’re in a state where we’re 45th in the country in number of doctors per 100,000 people. We’re in a state where only 42 percent of our doctors accept Medicaid now. There are already estimates of an additional 100,000 enrollees to Medicaid due to the Affordable Care Act — separate and apart from the expansion — [which will have] an estimated cost, according to the governor’s office, , in excess of 1billion over the next decade.

And many state budgets are being cut to balance this year’s Medicaid budget.

I don’t think the public understands how much money Medicaid costs.

One of the reasons we won on the spending clause in the U.S. Supreme Court was that on average, Medicaid is 10 percent of a state’s revenues.

When you talk about K-12 [education], technical colleges, colleges and universities, and Medicaid, it’s really tough for states before you even get to law enforcement on balancing a budget. We don’t get to do what Washington unfortunately does – give massive amounts of debt to our children and grandchildren. I think we’re getting to a crucial point where the states are having trouble funding the essentials.

Q: What are your thoughts about having special arbitration panels resolve medical malpractice allegations?

A: I think it would be very interesting to seek to do that in the form of a pilot [project]. Where everyone would have the benefit to see how it worked on a voluntary basis, before it was potentially made mandatory. By doing so, you may get a buy-in from both sides during that pilot project.

Q: You’ve taken an interest in food donations to the poor. How did your drive to get lawyers to collect food for the poor come about?

A: At the national attorneys general meetings, we try to cover best practices, and best practices may not be limited to how to win a lawsuit, [but also] what’s worked well for your community.

At one of the first meetings I attended, the attorney general for Virginia talked about how his predecessor, now the governor of Virginia, started this food drive. As a result the lawyers in Virginia collect approximately 1.2 million pounds of food every year.

Georgia’s now about the fourth state to do it. Since we’ve done it, one or two other states are now doing it.

The first year we collected the equivalent of 620,000 pounds. The goal this year is 750,000 pounds.

It’s a great way for lawyers to use their contacts in their local communities to collect food and money that goes straight to the local food bank. The food and money don’t come to Atlanta, and are thereafter spread throughout the state. They immediately go to one of the seven regional food banks where [people] live.

The scary fact for me is that 60 percent of our public school children are eligible for free or reduced lunch. That number is alarming. We have specifically timed our two-week food drive so that those children who get free or reduced lunch during the school year may have a healthy lunch over the summer. The food banks are using these donations to help them in neighborhoods where they know there are many poor children over the summer months.

Q: Many kids go hungry during the summer.

A: No one really thinks of what they do in the 10 to 12 weeks over the summer. We overtly encourage them to reach out to the Rotary, Civitan, Kiwanis, Chambers [of Commerce], bring a box and get food from everyone in their community.

With this recession, the demand is only greater, the state’s poverty rate is only higher. It’s a great opportunity for lawyers to provide additional value to their community. ..

And the winners are the children. . . . If part of the bully pulpit that comes with being the state’s lawyer is providing healthy food to our schoolchildren, so much the better.


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Andy Miller

Andy Miller is editor and CEO of Georgia Health News

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