Volume 53, No. 8 August
``Between 1989 and February of 1996, the defendant ***, a physician and health care provider specializing in family or general practice, was a physician civilian partner providing health care services to military dependants and military retirees....During the period of indictment, a provider who spent approximately 5 minutes with an established patient with a minimal problem claimed reimbursement under CPT Code 99211; approximately 10 minutes of ``face-to-face'' time with an established patient with a minor problem claimed reimbursement under CPT Code 99212; [etc. for codes 99213, 99214; 99215; 99201; 99203; 99204; 99205].
``Health care providers seeking compensation for services rendered to CHAMPUS must be able to document that the care or service shown on the claim was rendered....
``Between August of 1992 and February of 1995, the defendant, ***, devised and intended to devise a scheme or artifice to obtain money or property by means of false and fraudulent pretenses and representations, that is, in order to increase her compensation from the government, the defendant would submit CHAMPUS claims,... well knowing that the code number applied to the claim corresponded to a time unit in excess of the time actually spent with ... the patient....
``[T]he defendant, ***, for the purpose of executing the scheme and artifice ... did place, or cause to be placed, in the *** post office or depository thereof, letters or other mail matter containing false and fraudulent claim forms....''
Could your name be placed in the blanks, Doctor?
Upon receipt of the indictment, the defendant protested that it was not lawful to indict her without so much as an interview. Therefore, an interview was granted, during which law enforcers nodded and smiled as the physician explained her rationale for coding, with reference to the CPT coding manual. Time is not the controlling factor for ``E&M'' codes; complexity of the service is. Despite the defendant's perception that the interview had gone well, she promptly received a letter stating:
``After careful consideration of Dr. ***'s explanations, I find that I do not find them credible. If anything, the meeting confirmed to me that Dr. *** systematically inflated CHAMPUS billing claims. Regardless of her style of practice, she provided no reasonable explanation for how she could legitimately bill the government for 15 to 24 hours of ``face-to-face'' time per day....It is unfortunate that an otherwise capable doctor could become involved in such dire circumstances, but we have no real choice but to continue with the prosecution.''
The defendant was a very popular physician at the military base, seeing 35 to 40 patients per day (efficiently) and performing many procedures. Her monthly evaluations with her superiors, which included a review of billings, were very favorable. But one day, an active-duty military doctor turned her in. This doctor was seeing 8 to 10 patients daily while the defendant's waiting room overflowed.
The subpoena was delivered to the doctor's home at 8:00 p.m. on a winter evening by FBI agents in ``trench coats and gun belts.'' Her children were terrified. The doctor wisely declined to be ``interviewed'' without counsel. She delivered a truckload of charts covering about 65,000 office visits over 8 years of a busy practice. For a year and a half, the government reviewed records, which are still unavailable for patient care.
After the FBI came to her door, the doctor gave notice at the military base and was terminated immediately. Patients followed her to her new private office.
The defendant is threatened with delicensure, fines, imprisonment, and loss of her husband's farm, which he ``built up from scratch.'' The government, by the way, knows how many cows he has. She will be arraigned soon.
This case is but one of a number that have come to AAPS attention in recent weeks. Other situations in which physicians, if convicted, could be imprisoned include:
What can physicians do? Will they avoid the essential factor that triggers these prosecutions? That factor is: acceptance of taxpayers' (or even of insurers') money.
When a physician files a claim, his signature makes that c laim form the equivalent of a sworn statement that he has examined the codes and knows that they are all accurate.
Given the ambiguity and complexity of the codes, is it possible to file a claim without telling a lie?
The Lapps had achieved the American dream of owning their own farm in 1971, after a decade of hard work as sharecroppers and migrant laborers. That farm could now be seized by the IRS and the Lapps imprisoned. They do not believe this sacrifice would be too great ``for the freedom of heart in knowing that we can face God and man with this saying: `We have lived the truth'.''
The Lapps are not tax protesters. ``In the 25 years since we moved to our Cassadaga farm, we have paid, in school and property taxes, more than ten times the amount of the initial purchase price for our farm. In the 19 years we filed income tax forms, we sometimes received more money back in refund checks than we paid out. We returned the checks, or didn't cash them, because we do not believe it is honorable to receive money from the government.''
As the Lapp family grew and their business expanded, forms and record-keeping became unbearably burdensome. Finally, it became literally impossible to give a ``true and complete statement of all salaries, wages, and earnings,'' including any exchanges of ``produce, eggs, milk, ... and the value of meals and lodging.'' The Lapps believe in sharing (``bartering'') with family or anyone in the community.
Further, writes Susan Lapp, ``we could not accept being forced into being agents of the government who were required to enforce IRS and Labor Laws that were both heartless and unprincipled....[B]y our voluntary compliance to nonsense, we would only be strengthening these cruel and mindless government forces.''
An action against the Lapps was initiated in 1996 by Douglas Stelmach, an IRS officer. The Lapps believe they owe no taxes but refuse to complete forms. The Lapp family held a public forum on June 20, 1997, attended by more than 100 concerned citizens. Invited public officials, including Douglas Stelmach, declined to attend. [A copy of the remarkable testimony by the Lapps is available on request from AAPS.]
``I'm going to tell you what my public forum is...I'm referring you for a date in federal court,'' said Stelmach.?
To the Lapps, the issue is not money, but freedom. The threat is monopoly government. The strategy for overcoming it does not involve hate or a militia. Jacob Lapp writes:
``Stop thinking and acting as if there were nothing to do to stop this monopoly man's destructive rampage. There is. I do not ask that you hurt him. That would be too close to condescending to his level. I do not ask that you vote him out of office. That would be futile; as long as that office remains, there would be someone like him to fill it. I ask that you seize the moral high ground by expressing no malice toward him. He may well be thinking he is doing the right things.
``I ask that you withdraw the support that he stands on. He will then topple of his own weight and bruise his big nose....I ask that you help me paint him in his true colors...
``I and my family will be free and so will you.
``Until then...the productive sector of society will walk around on their knees, saying `Daddy, may I?' ''
Jacob Lapp refused to appear in court on June 26.
The normal procedure is for the judge to issue a bench warrant for the arrest of a defendant who fails to appear. As yet, the judge has not done so. Instead, he demanded that the IRS meet with the Lapps to work things out.
The Lapps have no firearms; still, the IRS refused to meet with them without an armed guard. A public meeting place is being arranged.
President: V.L. Goltry, M.D., of Boise, ID
President-Elect: James Weaver, M.D., of Durham, NC
Secretary: W. Daniel Jordan, M.D., of Atlanta, GA
Treasurer: R. Lowell Campbell, M.D., of Corsicana, TX.
Directors: John Boyles, M.D., of Dayton, OH; Dexter Blome, M.D., of Zanesville, OH; Nino Camardese, M.D., of Norwalk, OH; Robert Cihak, M.D., of Aberdeen, WA; Robert Gervais, M.D., of Mesa, AZ; Don Printz, M.D., of Lilburn, GA; and Robert Urban, M.D., of Belle Vernon, PA.
Tax policy analysts also charge the agency with major incompetence. The error rate in processing claims is a staggering 20%. The agency has allegedly ``misplaced'' 6,400 computer tapes, each containing thousands of taxpayer files (Investor's Business Daily 4/11/97). The GAO is unable to track the path taken by $1.3 trillion collected in 1995 from IRS Service Centers to the Treasury (USA Today 3/6/97).
If this nation is to be preserved..., then the vast apparatus of bribery and coercion we call the federal government must be reduced to its dimensions of 60 or 70 or 100 years ago. We have all been corrupted by government, but there remains a militant minority that is convinced that we could solve our problems, if the federal government would only stay in Washingon, D.C.
Thomas Fleming, Chronicles, August 1995
Mr. P‚rez filed a petition for rehearing on the basis that the Court's opinion was based on a palpable error: ``This Court incorrectly has assumed that the patients were not present when in fact [they] were present and no untainted evidence to the contrary [was] presented at trial.''
If the new prosecutorial theory were correct, the prosecution would have had 1,345 potential res gestae witnesses. Of these, the prosecution called exactly one (1), and she testified that she had come to the office to bring a form.
Mr. P‚rez argues that his constitutional rights were violated in that he was not notified of the charges against him prior to trial. Moreover, he states that the prosecution maliciously concealed exculpatory evidence.
The government contended that each CPT code should be treated as a separate claim, leading it to seek ``an astronomical $81 million worth of damages for alleged actual demands of $245,392.'' The Court ruled that one ``claim'' consists of one HCFA 1500 form.
For psychiatric codes, time spent with patients is a key issue. Mrs. Krizek ``made no effort to establish how much time Dr. Krizek spent with any particular patient.'' Dr. Krizek's failure to review bills submitted on his behalf was ruled to be ``reckless disregard.'' The Court observed that ``an FCA violation may be established without reference to the subjective intent of the defendant.''
Dr. Bartz has filed suit against Michigan Attorney General Frank J. Kelley and Blue Cross & Blue Shield of Michigan, alleging malicious prosecution.
The investigators seized dozens of patients' records, far more than authorized by the search warrant, and have yet to return them or to release copies. Patients are concerned about loss of confidentiality as well as their ongoing care.
Over a five-year period, Bissell reportedly misused $1.5 million of the $3.2 million seized, as on improper bonuses rather than law-enforcement efforts.
While awaiting sentencing on a federal conviction for fraud and tax evasion, he fled New Jersey. When caught by federal marshalls in a Nevada hotel room, he shot himself.
``I can't do ten years,'' he said (NY Times 6/18/97).
Then the FDA suddenly did an about-face, leading to the suspicion that ``the whole negotiation process [was] a cruel hoax by FDA to flush out any unidentified physicians using 801(e) excimer lasers.'' SALT claims that the custom lasers the physicians are using are safer than the approved devices.
The arbitrary actions of the FDA suggest corruption and influence pedaling by vendors seeking to monopolize the excimer laser market. The FDA is, in effect, seeking to micro-manage the practice of medicine.
SALT believes that a court challenge is winnable, but it would be extremely expensive.
AAPS Director Lawrence Huntoon, M.D., asks: what happens if I don't sign their atrocious form? What happens if I submit claims (as required by law), but they refuse to accept them because I haven't signed the form? Would they be breaking the law? Dr. Huntoon also warns that signing the form would preclude a physician from complaining about Medicare- created problems because he could not divulge any information about a Medicare beneficiary except to HCFA.
Interestingly, while passing through Cassadaga, New York,
yesterday (which is where the Lapps live), I got pulled over by
the State police. I was second in line of about four other cars.
A trooper driving in the opposite direction seemed to recognize
either us or our car. After passing us, he made an abrupt U-turn
in the middle of the street and came after us. He said he
``thought our inspection sticker might have expired.'' (The
sticker is 2 x 2 inches and has a small hole punched through the
date of expiration.) I had not violated any traffic law and was
not accused of anything. I thought it might be some new law
giving the government power to do various things if they think
you're about to commit a crime. The trooper wanted to know where
I had been, where I was going, and why was I out riding in the
car with my wife, my dog, and my cat. (We had just taken our pets
to the vet and were driving home.) Maybe they thought I was going
to visit the Lapps. Funny how it happened near Cassadaga....
Lawrence R. Huntoon, M.D., Ph.D., Jamestown, NY
Industrial Commission Encourages Lies. Patients have an incentive to file their medical claims with Worker's Compen- sation. If the Industrial Commission approves the claim as being work-related, the patient gets reimbursed for the copayment, deductible, and any out-of-pocket expenses. The Commission will often approve cases that can't objectively be proven to be work- related, such as backaches and carpal tunnel syndrome. I don't care to work with the Industrial Commission, ... a program that ignores free-market forces and produces care of lesser quality than I am willing to provide. The Industrial Commission of Utah fixes prices and tries to force physicians to participate....
In response to questions raised by Dr. Reynolds, Alan Hennebold, General Counsel, Industrial Commission of Utah, telephone (801)530-6937, writes that: A physician's duty to abide by workers' compensation rules and fee schedules arises from the nature of the injury. It is a matter of statutory law, rather than contract. Even if a physician explicitly states that he does not wish to see industrial patients and patients sign an acknowledgment to that effect, the physician is still bound by Commission rules if it is later determined that the injury was industrial. The physician may have to reimburse amounts paid under the assumption that the case was nonindustrial.
Question: ``Is there any way a physician in Utah can close his practice entirely to industrially injured patients?'' Answer: ``In absolute terms, probably not.''
Inconsistencies by Medical Board. In July, 1996, Dr. Eric Braverman's license was suspended by the Board of Medical Examiners. The DA accused him publicly of ``gross malpractice,'' techniques that ``bordered on quackery,'' and lack of good moral character. Any single charge, if proved, would be enough to bar him from practice. But ten months and hundreds of thousands of dollars later, the Board backed off on all except the usual fallback, face-saving, round-up-the-usual- suspects position of ``shoddy recordkeeping.''
``We called his practices into question, and all our questions were answered. He was able to adequately prove to us that there were legitimate medical reasons for the things he did,'' stated Rita Malley, spokeswoman for the Attorney General's office (Burlington-Metro Times 5/22/97).
Dr. Braverman said he thought he was targeted because of ``alternative'' methods. He filed a $3 million lawsuit against the BME, now settled. He owes the state $20,000 for their investigation of his practice.
What is going on here? Is the BME defaulting on its obligation to rid us of a rogue doctor? Or is it a mendacious, meretricious, and nasty gang that persecutes doctors in the guise of offering consumer protection? Or a bunch of feckless bumblers unable to distinguish medical fact from fiction?
The major structural problem in this system is the inclusion of the BME in the Dept. of Consumer Affairs, headed by the Attorney General. Every case becomes a legal problem before it is has been adequately investigated.
I feel competent to comment on this case because I too have
locked horns with BME. I ``voluntarily'' surrendered my license
to avoid draconian penalties. My hearing was an inquisition run
by a podiatrist. I could not prepare; I had no idea what
questions would be asked. I harmed no one, helped a lot of
people, and broke no laws. Any reasonable society would want to
make use of 50 years' experience in medicine in one capacity or
another, not simply jettison the entire package.
Charles Harris, M.D., Island Heights, NJ
Because the amendment would allow for seniors to pay for medical services directly, if they wished, Kyl argued that his amendment would likely be scored by the Congressional Budget Office (CBO) as a savings to the taxpayer.
Kyl made the salient point that Congress never intended to outlaw private contracting in Medicare. But the Medicare Technical Corrections Act of 1995 contained subtle language which enabled the Health Care Financing Administration (HCFA) to expand existing restrictions on private payments in the Medicare program to all ``enrolled individuals,'' whether or not claims were filed with Medicare.
Kyl noted, in the course of the Senate discussion, that HCFA's enforcement has been hazy, but that the bureaucrats at HCFA have been very clear-on the record-that they are adamantly opposed to Americans spending their own money on medical care once they reach the age of 65. Kyl recounted the evidence for his Senate colleagues. Bruce Vladeck, Administrator of HCFA, has stated that, in his view, the current law requires that physicians submit claims on behalf of Medicare beneficiaries: ``Violations of these requirements are subject to sanctions such as civil monetary penalties and exclusion from Medicare.'' Likewise, Tom Ault, HCFA's Director of Policy Development, has stated that for doctors to engage in private contracting with senior adults is ``illegal.'' Ditto Kathleen Buto, HCFA's Director of the Bureau of Policy: ``A physician can choose not to treat Medicare beneficiaries. However, once a physician renders services to a Medicare beneficiary, he or she is subject to Medicare's requirements and regulations, regardless of the physicians' participation as a Medicare provider. A physician's failure to comply with the claim filing requirement violates Medicare law and subjects him or her to possible monetary penalties.''
Put plainly, these statements of the HCFA bureaucracy mean that American citizens lose personal freedom once they turn 65. Most Americans would be shocked to learn this. For example, the Wirthlin Organization, a prestigious polling firm, reported in November 1996 that 60% of Americans believe that they should be able to add their own money to government payments in order to get ``unrationed'' health care services.
``Surely,'' noted Senator Kyl, ``a law that made it illegal to supplement with private funds the amount received from Social Security would be met with disbelief and derision.'' HCFA's interpretation of Medicare law is, and has been, an arrogant exercise of bureaucratic power.
As of this writing, the matter will be settled in the House and Senate conference on the Reconciliation bill because the House of Representatives does not have a similar provision.
The Executive Office of the President, Office of Management and Budget, is strongly opposed to the proposal, calling it a ``threat to beneficiary protections.'' They are concerned that ``private agreements could become licenses for physicians to coerce beneficiaries, exposing beneficiaries to unlimited liability and making meaningless the Medicare coverage they have paid for.''
To allow voluntary arrangements as an escape from coercive ones is thus ``coercive'' (consult your Newspeak Dictionary).
Increasing the Medicare premium for wealthy retirees will only partly rectify an imbalance in the payment structure. Too many Americans do not understand that for every $1 that the elderly contribute for Medicare, the taxpayers now kick in $5. The increase would affect only 5% of the Medicare population of 33 million elderly, those couples making $75,000 per year or more income. It is a modest corrective.
Nonetheless, the central ``liberal'' principle of health policy is that everyone, regardless of how well off he is, is entitled to have somebody else to pay his medical bills. Sen. Kennedy and liberals in Congress even a oppose a simple $5 copayment for Medicare home health care services, the fastest growing component of the Medicare system. The unspoken assumption is that working families should simply pay the whole cost.
For low-income seniors, Medicaid would still cover out-of- pocket costs, including Medicare deductibles and co-insurance.
The Senate handling of the Medicare deductible issue, its retreat from raising the deductibles and then promoting a premium increase for the same class of wealthy seniors, is a case study in the politics of Medicare in 1997. Faced with a whiff of political grapeshot from liberals in Congress (who also oppose allowing choices that might benefit the ``healthy and wealthy''), the Senate beat a quick retreat. Hand it to Senator Kennedy; he really knows how to make Republicans dance.
One remarkable argument advanced by Congressional liberals and the AARP lobbyists is that raising the deductible would be tantamount to an administrative nightmare. Please note: A standard defense of the status quo in Washington is that, well you might have a good idea-it might be just, it might be fair, but it would inconvenience government bureaucrats. So, tell your story walking.
Over the past 40 years, the Congress and succeeding Presidential Administrations have created 77 means-tested federal programs in the welfare system (food stamps, general assistance housing assistance, Medicaid) requiring bureaucrats to make determinations based on income, costing taxpayers about $325 billion per year. Fixing eligibility was never an administrative problem, as long as taxpayers were shelling out billions of bucks. Now the Senate drafts a proposal that is designed to save taxpayers money, and it is an ``administrative problem.'' It would inconvenience the bureaucrats at HHS and among the Medicare contractors. Nobody seems to have had the gumption to say to HCFA bureaucrats or their Medicare contractors: Tough. Go to work and get the job done, or find another job.
Moreover, nobody in Congress-at least no one with a high enough profile to challenge the Clinton Administration head on- seems to care about the administrative nightmare that Medicare itself has become. It is absurd to say that one particular change in Medicare policy constitutes an insufferable administrative hassle, when the entire system itself generates administrative hassles before breakfast. In Medicare, liberals in Congress and their friends in the special interest groups that make a living out of expanding government programs have created a system governed by 22,000 pages of rules, regulations and guidelines. Doctors and hospitals are swimming-no, drowning-in a rising sea of Medicare paperwork and being forced to comply with often stupid bureaucratic rules. It is a tremendous waste of time, energy, effort, and resources that should otherwise be going to patient care.
In any case, the matter of the Medicare premium increase for the wealthiest of the Medicare population will also have to be settled in the House/Senate conference. The House of Representatives does not have a similar provision.
Once again, the House of Representatives does not have a similar provision, so the question of age-eligibility for Medicare will have to be ironed out in conference.
There are two structural items, set up as demonstration projects, before the Congress in the current Reconciliation bill.
First, Medical Savings Accounts are introduced as a way for seniors to bypass the traditional Medicare system and all of its bureaucracy and pay for services directly. The House bill provides, as noted last month, a demonstration project allowing 500,000 such accounts to be opened. In the Senate bill, the demonstration project is limited to 100,000. The OMB wants an even lower limit.
Second is the Senate Finance Committee proposal, sponsored by Senator John Breaux (D-LA) and Senator Connie Mack (R-FL) to set up a demonstration project for 13 regions of the country, where Medicare beneficiaries will be able to have access to the same kind of system of consumer choice and competition among private insurance companies that is now only available to federal and congressional employees and retirees. Senator Breaux, who also backed Senator Kyl's amendment to allow private contracting, has emerged as a sharp critic of the paperwork and bureaucracy that is plaguing the existing Medicare program.
Seniors participating in both of these demonstration programs would have better benefits-including access to prescription drug and catastrophic coverage-at competitive prices and with less bureaucracy.
These issues will also be decided in conference; the House version lacks the consumer-choice demonstration project modeled after the popular Federal Employee Health Benefits Program.
The White House is opposed to allowing seniors to choose private fee-for-service plans, calling them ``bad policy, particularly given the fact that these plans will be subject to no balance billing or quality protections.'' OMB fears that too many rural providers might choose to leave traditional Medicare and form private plans. (Can they explain why?)
While doctors and patients have long grown accustomed to a Congress that talks a lot about change, disappointment has been the normal outcome. But this time, Congress could be on to something big.