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In letters to several federal lawmakers in May 2009, Gottstein reported the massive Medicaid Fraud involved in the prescribing of psychiatric drugs to children covered by Medicaid. Copies of the letters were also sent to Kathleen Sebelius, Secretary of Health & Human Services, Kerry Weems, Acting Administrator, CMS, and Joyce Branda, Director of the Department of Justice Commercial Litigation Branch (Frauds).
"The fraudulent activities of drug companies in promoting off-label pediatric use of psychiatric drugs ... has begun to be exposed, but the psychiatric drugging of America's children and youth goes on unabated," Gottstein advises in the letters.
While preparing the filing of a lawsuit to prohibit the State of Alaska from paying for psychiatric drugs prescribed off-label to children covered by Medicaid in Alaska, Gottstein led an investigation that determined the vast majority of psychiatric drugs prescribed to kids on Medicaid constitute fraud. A tremendous percentage of the prescriptions did not qualify for reimbursement the letters point out:
"For example, no anti-convulsants masquerading as "mood stabilizers," such as Depakote or Tegretol, have been approved for pediatric psychiatric use or supported by any of the compendia. However, these drugs, especially Depakote, are routinely paid for by Medicaid without any apparent consideration that the practice has been prohibited by Congress.
"With respect to the second generation neuroleptics, no pediatric use of Seroquel, Zyprexa or Geodon is approved by the FDA or supported by any of the designated compendia. Risperdal is approved for very narrow uses, as is Abilify, but even when prescribed for these indications, they are almost always prescribed concurrently with another drug(s), which is not FDA approved or supported by any of the designated compendia."
In 2007, through a state FOI request, PsychRights found Alaska Medicaid was paying approximately $123,000 per month for anticonvulsants prescribed to kids and $288,000 for second generation neuroleptics for a "total averaging approximately $411,000 per month in improper Medicaid payments in Alaska alone."
"Extrapolating this to the entire country," the letters state, "there is over $2 Billion in Medicaid payments for psychiatric drugs to children and youth that Congress has explicitly prohibited."
"In truth," Gottstein says, "this is the smallest amount because typically two or more of these drugs are administered concurrently, in what is called polypharmacy, none of which has been approved by the FDA for pediatric use or supported by any of the designated compendia."
"It is hard to come up with an adjective that adequately conveys the horror this is inflicting on America's children and youth," he states. "Suffice it to say that when the country wakes up to the carnage this has caused, it will be recognized as the largest iatrogenic (doctor caused) public health disaster in history."
In January 2010, PsychRights announced the unsealing of a major Medicaid Fraud lawsuit against psychiatrists, their employers, pharmacies, state officials, and a medical education and publishing company for their roles in submitting fraudulent claims to Medicaid. The complaint was filed on April 27, 2009, under the federal False Claims Act which allows private parties to bring fraud actions on behalf of the Government, but was kept under seal until January 2010. The defendants include more than a dozen child psychiatrists, Alaska officials, health care agencies, and pharmacies.
PsychRights has also developed a streamlined model Qui Tam Complaint for use by interested attorneys around the country. The complaint is drafted for former foster children to bring the lawsuits and receive the whistleblower's share of the recovery, but anyone with knowledge of specific offending prescriptions, such as parents and mental health workers, can bring suit.
Last fall, Gottstein gave presentations on how to file and conduct these types of cases at the national conventions of the National Association for Rights Protection and Advocacy (NARPA), and the Internation Center for the Study of Psychiatry and Psychology.
While PsychRights is not bringing these cases for the money, such lawsuits represent a tremendous financial opportunity for attorneys to do well by doing good. "These are about as open and shut as cases can get," Gottstein says, "it is Medicaid fraud to cause or submit prescriptions to Medicaid for reimbursement if they are not for a medically accepted indication. End of story."
(Part IV of this series will cover the role of Patient Support Organizations in the American Epidemic of Mental Illness)
Evelyn Pringle
(This series is sponsored by the International Center for the Study of Psychiatry and Psychology http://icspponline.org/index.html)
