Volume 59, No. 5 May 2003

MIRANDA WARNING FOR PATIENTS

As AAPS will inform patients in a national advertising campaign, HIPAA-covered entities should be handing patients a Miranda warning come April 14. That's the real meaning buried in the lengthy privacy notification, which will resemble the Gramm- Leach-Bliley non-privacy notices that you get from your bank and probably throw away.

The Miranda warning, of course, applies to persons arrested as criminal suspects. And anyone with a medical record could be a criminal suspect, with evidence from that record readily accessible to a vast dragnet no warrant required.

For example, a prescription for an opiate might be considered a reason for "oversight." The physician might have demanded a urine screen for marijuana and other controlled substances as a condition for prescribing pain relief. Such specimens should be handled with a "chain of custody" appropriate for crime-scene evidence, advised pain management expert David Greenberg, M.D., at a March 22 seminar sponsored by the Pima County (Tucson, AZ) Medical Society. Could a positive screen found by overseers be used as evidence to prosecute a patient? Or as an incentive to get a patient to testify against a doctor as part of a plea bargain?

As already determined by a federal court, HIPAA appears to do exactly what AAPS predicted: it gives the U.S. unlimited access to personal medical records under its "oversight" power pursuant to the Privacy Rule.

In defending against a qui tam action brought under the False Claims Act, the Louisiana Clinic sought to protect the medical records of nonparty patients. It argued that "Louisiana law requires notice to a patient and a contradictory hearing that includes the patient before a health care provider can produce nonparty patient records without the patient's consent" (US ex rel. Mary Jane Stewart v Louisiana Clinic, 2002 U.S. Dist. LEXIS 24062).The Court ruled:

The oversight activities authorized by law include audits; civil, administrative, or criminal investigations, proceedings, or actions; and licensure or disciplinary actions.

Lest we forget, the Privacy Rule is part of a set of regulations intended to support a centrally managed, national medical system through computerized, widely accessible medical records. "Administrative simplification" was the task of Working Group 19 of the Clinton Task Force on National Health Care Reform (see AAPS News Jan 2003), with participants from WEDI, EDS, Telesis, CIS Technologies, US HealthCare, Aetna, Blue Cross/Blue Shield, and numerous other managed-care, technology, and hospital interests.

The intention was, according to a memorandum from Group 19 Leader Tim Hill, to "require, by July 1, 1994, all providers...to use the claim forms, enrollment data sets and utilization review standards set forth by the Secretary." Then the Secretary was to be authorized to mandate automation of transactions for which she had promulgated standards by December, 1995 under pain of civil monetary penalties.

Unique identifiers would be needed to "track problems abusers, chronics," according to handwritten documents that AAPS obtained through discovery in AAPS v Clinton.

Privacy is clearly an impediment to efforts to track "cheaters" trying to evade price controls or rationing. Such actions could be subject to criminal penalties, as in Medicare.

A facade of privacy protection is necessary, however, to gain public acceptance of the tracking mechanism.

The Privacy Rule will indeed have a highly noticeable impact on medical care: Reporter Robert Pear calls it a "quiet revolution" (NY Times 4/6/03). Staff will be preoccupied with forms, training, and compliance exercises. Florists, clergymen, and relatives may have difficulty locating hospitalized patients. Physicians may be denied access to information they need.

At the same time, the computerized medical record will be wide open to unseen agents who are working for "national priorities" or the benefit of the "system," rather than any individual patient. Moreover, as HHS itself acknowledges, "privacy and security are inextricably linked," and the integrity and confidentiality of the computerized data cannot possibly be protected without the security standards which were recently promulgated but are not enforceable until April, 2005.

Traditionally, privacy has been protected by requiring patient consent to release the record. The original Privacy Rule destroyed this barrier by requiring all-or-nothing "consent": patients either agree to release all information for "TPO" (treatment, payment, and "health care operations") or forgo medical treatment. The amended Privacy Rule removes the pretense of consent altogether, so that no patient who has ever seen a covered entity can protect records from federal scrutiny, even by self payment or doing without treatment.

The AAPS lawsuit that seeks to overturn the Privacy Rule on constitutional grounds which established the "country doctor exception" (AAPS v HHS, see AAPS News Jan, Aug, and Nov 2002) has been scheduled for oral argument in the Fifth Circuit Court of Appeals in New Orleans in early May. In the meantime, AAPS will be filing to enjoin enforcement of the Rule on procedural grounds.

This unprecedented massive intrusion of government into every medical encounter must be stopped. AAPS is working on the legislative, legal, and educational fronts.

Texas Repeals HIPAA Law

As members brought to our attention at the San Antonio meeting, Texas had passed a law defining all physicians and "providers" as HIPAA-covered entities, in Sections 181.101 and 181.102 of the Health and Safety Code. An act repealing those sections, S.B. 330, has passed both House and Senate and has been sent to the Governor for signature.

Who Is Investing in HIPAA?

When 1.5 million data files containing medical records and Social Security numbers were stolen from TriWest computers, victims were sent information on identity theft and that's all.

Once 250 million medical records are on 1 million computers, Walt Francis suggests buying stock in an off-shore company that sells personal information. "Better yet, set up that company yourself. For a few thousand dollars in bribes, you can have a data base that will put the [NSA] to shame."

Mr. Francis advises patients to seek potentially embar- rassing medical care under a pseudonym. Pain treatment may be out government-issued picture ID may be required to receive a prescription for a controlled substance.

HHS ignored comments suggesting measures such as a registry of searches and allowing only HHS-certified bureaucrats to search. "Sleep well in the knowledge that your medical records will never be lost," Mr. Francis concluded.

Data Mining

Education Records. Reps. Mike Ferguson (R-NJ) and Christopher Bond (R-MO) propose to permit the CDC to use educational records without parental knowledge or consent, for research on developmental disabilities.

National Crime Information Center (NCIC). AAPS signed an on-line petition asking that the FBI comply with the Privacy Act of 1974 and rescind its decision to exempt the NCIC from obligations to make reasonable efforts to assure accuracy (see www.epic.org/actions/ncic/). NCIC responds to 2.8 million queries per day; inaccurate or incomplete information can seriously harm a citizen.

Texas Agencies Fail to Protect Data. Texas State Auditor's Office Report 03-017, Feb 2003, states that numerous weaknesses in the consolidated network of health and human services agencies permit unauthorized access to confidential files that could be read, copied, modified, or deleted.

Minnesota Data Collection. The Minnesota Department of Health has collected more than 130 million personally identifiable private records, without patient consent. An attempt to repeal the enabling legislation has been dropped for the year, according to Twila Brase of the Citizen's Council on Health Care ( www.cchconline.org).

Homeland Security. A "major crossover between homeland security and medical privacy" results from the HSA's data-mining provisions and Total Information Awareness (Healthcare Compliance Letter 2/18/02; AAPS News Jan 2003).

AAPS Calendar

May 30. Board of Directors meeting, Seattle, Washington.
May 31. Shark-Proof Your Practice seminar, Seattle.
Sept. 17-20. 60th annual mtg, Point Clear, Alabama.
Oct. 13-16, 2004. 61st annual mtg, Portland, Oregon.

Ron Paul Introduces Bill to Repeal Privacy Rule

Life-time AAPS member Ron Paul, M.D. (R-TX) has introduced the Patient Privacy Act (PPA), H.R. 1699, which would repeal the mis-named Privacy Rule, repeal the HIPAA provisions authorizing the "standard unique health care identifier" for all Americans, and prohibit the use of federal funds to develop or implement a database containing personal health information. Dr. Paul writes:

Many things in Washington are misnamed; however, this regulation may be the most blatant case of false advertising I have come across in all my years in Congress. Rather than protect an individual right to medical privacy, these regulations empower government officials to determine how much medical privacy an individual `needs.'

Dr. Paul believes that it is the right of individuals, not the government, to determine what social goals warrant allowing others to access their private property, including personal data.

AAPS Members Respond to HIPAA

A Non-Issue in My Practice. "Physicians really do have the solution to this. We can refuse all contracts with third parties and claim HIPAA's country doctor exemption," writes Robert Berry, M.D., of Greeneville, TN. "I have never had to force a patient to sign one of these statements.... I have had patients switch their care from physicians who forced them to sign this document." Dr. Berry's files are as confidential as they were with the old country doctor. "If we as physicians continue to comply with bureaucratic mandates for lucre, then we deserve to be their slaves," he states.

The "Quiet Way to Comply with HIPAA" is to be a noncovered entity. William A. Jones, M.D., of Fort Collins, CO, distributes this handwritten message with a quotation from the HHS motion to the court in AAPS v HHS and a printout from the AAPS web site defining noncovered entities.

"HIPAA-Free Office: Certificate of Privacy Assurance" inspired by the AAPS Model Patient Advisory is available from the ChiroCode Institute, www.chirocode.com.

Model Resolution. A resolution for the California Medical Association House of Delegates, by Stephen J. Walsh, M.D., of San Francisco, asks the CMA to "encourage federal legislation to restore genuine medical privacy and patients' traditional right to consent for their personal medical information release" and to join with other organizations in legal actions against the Dept. of HHS to restore medical privacy.

CMS to Non-Covered Entities: "It is true that if you are a 100% paper office, you...do not have to comply with the HIPAA rules. But is this a good business decision?" writes Cathy Benoit, M.B.A., HIPAA Coordinator for the Atlanta Regional Office of CMS. HIPAA is a "business opportunity."

Final Ruling in AAPS v. Clinton

On March 25, Judge Royce Lamberth "reluctantly agreed" with the U.S. Department of Justice that the award of legal fees to AAPS under the Equal Access to Justice Act (EAJA) was precluded by a 2001 Supreme Court decision. He ordered defendants to pay AAPS counsel $17,138.93 on a 1993 motion for fees for discovery abuse, and closed the docket.

In Buckhannon Board and Care Home v. West Virginia Dept. of Health and Human Services, No. 99-1848, the U.S. Supreme Court decided that the fee-shifting provisions of the Fair Housing Amendments Act (FHAA) and the Americans with Disabilities Act (ADA) required that a party had to either secure a judgment on the merits or a court-ordered consent decree in order to qualify as the "prevailing party." In Buckhannon, the case was mooted after passage of legislation.

The AAPS case was mooted when the DOJ "voluntarily" provided boxes of documents after many hearings and court orders but before a final decision by the Court.

"It appears that the federal government can avoid its responsibility to pay plaintiffs' legal fees under the EAJA by capitulating at the last instant, when it is clear that it will lose in Court, even though the DOJ has prolonged litigation through convoluted legal maneuvers and thereby maximized costs," stated AAPS Executive Director Jane M. Orient, M.D.

Amicus Filed in License Revocation Case

Amicus Filed in Mitrione Appeal

The precedent established in the case of Dr. and Mrs. Robert Mitrione (see AAPS News June, Oct 2002, and Jan 2002 Legal Supplement) will affect many physicians.

"Many other AAPS members are deciding whether to continue serving the poor through the Medicaid program, if 23 months in jail can result based on a picayune dispute over $75.25 in claims (the total amount of the remaining conviction here). Where, as here, the conviction was the product of false government testimony, the precedent at stake is even more important," wrote AAPS General Counsel Andrew Schlafly.

The Court erred, AAPS argues, by inferring fraudulent intent rather than mere mistake. A conviction for mail fraud (based on a $25 claim) requires a jury finding of specific intent to defraud, beyond a reasonable doubt. Yet the primary proof of mens rea the false testimony was stricken. Previously, the Court had held that, even in the less demanding context of audits and civil penalties, the sample to establish inappropriate billing must be random and significant. An unrepresentative sample of a mere two claims cannot establish criminal intent.

Additionally, the Court relied on expert opinion to claim that defendants used a therapist who was unqualified under Illinois Medicaid policy, when published federal regulations expressly authorize physicians to use therapists of their own choosing. The Judge then imposed sentence enhancements on the defendants based on her personal disapproval of the medical treatment rendered.

The prosecutor attempted to block the AAPS amicus brief, and then filed motions to disqualify both defendants' briefs before the Seventh Circuit. This was apparently an attempt to force the attorneys to redo all their work, probably at their own expense defendants were depleted of their assets long ago.

Briefs are posted at www.aapsonline.org; click on "prosecutions," then "US v Robert Mitrione." The American Health Legal Foundation funded the AAPS amicus brief.

Tip of the Month: The legal approach of alleging defamation has worked again, where other theories have failed. Claims in defamation are simple to make and do not require one- tenth the cost of an antitrust action. More importantly, immunity under the Health Care Quality Improvement Act does not apply to defamation beyond peer review itself. In Davita Inc. v. Nephrology Assocs., P.C., 2003 U.S. Dist. LEXIS 4770 (S.D. Ga. Mar. 25, 2003), a kidney dialysis center sued its former medical directors for alleged defamation, and the court refused to dismiss the claims. "Under Georgia law, defamation requires proof that a statement was (1) false, (2) malicious, and (3) published. In addition, oral defamation may `consist in ... making charges against another in reference to [a person's] trade, office, or profession, calculated to injure him therein ....'" Id. at *10 (citations omitted). Where defamation exists, an aggrieved physician can sue for it and thereby obtain discovery and conduct depositions of defendants.

Deterrence: Medicare Sanctions

As of January 8, 2003, there have been 26,594 program exclusions, 3,749 involving a medical practice. There were 7,120 program-related convictions, 10,486 license revocations or suspensions, 377 convictions involving controlled substances, and 281 convictions for health care fraud (Medicare Compliance Alert 1/13/03). How many were justified? No one knows.

Correspondence

Liberal "Compassion." As government-provided "free" medical care threatens to bankrupt the county, and the State of New York doesn't have the money to pick up the tab, "Sen. Clinton Pushes for Medicaid Relief," according to the Post- Journal headline (10/19/02) from federal taxpayers.

When will this formula for election success begin to break down? When the public begins to recognize that the "other people" paying the taxes are all of us. The leftist claim of compassion is nothing more than a promise to spread the misery. When there aren't enough other people to spread the costs to, the socialist myth of free stuff to all will be exposed.

How do socialists spell "relief"? F-R-A-U-D.
Lawrence R. Huntoon, M.D., Ph.D., Jamestown, NY

Consumer Choice for the Poor? If being poor means that people can't be trusted to make the "right" decisions, say about medical care, what about those at 150% or 200% of poverty? And should they be allowed to climb mountains, a hobby with a high fatality rate? Or to stay on their farm and continue working with large, potentially dangerous animals?

If poverty makes one incapable, why doesn't the state make decisions for college students, who are known to make bad decisions about all kinds of things?

What about those of us who are descendants of poverty- stricken immigrants? Should we have been wards of the state?
Linda Gorman, Englewood, CO

Today's Magicians. Lawyers have a way of altering reality or intent by redefining words. For example: the Framers recognized that government power is restricted to the extent that property is private. So leftist lawyers turned the concept on its head by creating public-private partnerships in order to regiment society. Such lawyers are like the sorcerers of yesteryear who sought answers through magic words rather than the application of reason.
Robert P. Gervais, M.D., Mesa, AZ

The Wrong Question. Legislators are trying to to design a prescription drug benefit that will not have disastrous effects, as on new drug development. But instead of asking how to amortize the costs of research (or shift the cost of prescriptions), we should ask how to lower costs. Essentially, the answer has to do with the role of the FDA. And remember, the largest cost of the FDA is not denominated in dollars but as the opportunity cost of drugs that are never brought to market, or brought to market decades too late for patients who might have benefited from them.
Gerry Smedinghoff, Phoenix, AZ

Non-Participation Is Better. My impression is that the government has less respect for participating physicians, and treats them as their workers. The government also has a political fear of angering a large constituency of senior citizens. Thus, having the senior squarely situated between the government and the physician is the safer way to go.
Alieta Eck, M.D., Somerset, NJ

Opting Out Is Wonderful. When Medicare became a reality in the mid 1960s, I initiated my own "medicare program," which called for a $50 per year deductible followed by a 20% charge for all patient services. Not only were my patients happy with my plan, but I probably lost little or no income and filled out no Medicare papers.

After my anesthesia residency (1973-75), I went into a group practice in which a high percentage of patients were over the age of 65. During that time, I billed Medicare, as was the common practice. However, by 1997, I became so disenchanted with Medicare that I decided its constraints far outweighed the paltry financial returns and began the opting-out process. I have continued to treat Medicare patients without charge. I'm in my fifth year of being opted out; I couldn't have made a better choice. My advice: try it you might like it.
Donald R. Salmon, M.D., Las Vegas, NV

How I Got Out of HIPAA. I told my billing agent to press the "print" button instead of the "send" button. He now mails the bills. It costs less. There has been a slight delay in payment, unworthy of consideration. If your attorney does not know how to advise you, get another attorney.
Samuel A. Nigro, M.D., Cleveland Heights, OH

Who Are the "Bad Docs"? The statement, as by Public Citizen, that the bad doctors are the problem with liability insurance premiums gives me comforting reassurance. Family doctors, pediatricians, and psychiatrists are the good doctors. Neurosurgeons, orthopedists, and obstetricians are the bad doctors. How do I know? The former, my group, pay the lowest rates; the latter, the highest.
James Pendleton, M.D., Bryn Athyn, PA

Hourly Wages. In discussions about the professional liability crisis, physicians may feel uncomfortable discussing their income, which may remain in the six figures. I suggest converting it to an hourly wage. If I use time and a half for overtime, my hourly wage by the end of 2002 dropped to $17- $18/hour, substantially less than I must pay my nurse to compete with other available opportnities. If I say $120,000, most people assume that is $60/hr.
L.L. Penney, M.D., Columbus, MO

Legislative Alert