Volume 52, No. 11 October
HHS Inspector General June Gibbs Brown tells ``What the Medicare Police Look For'' in the Sept. 9 issue of Medical Economics. She was offended by ads-``by the AMA and others''-that say ``an honest provider could be thrown in jail for an honest mistake....I invite everyone to look at our cases. You won't find anybody who has been convicted of a crime when all he did was make an honest mistake.''
She did not say that such an eventuality would be outrageous, impossible, or even offensive. Nor did (or could) she say that no innocent physician has been ruined by federal investigations. She made no promise to right any wrongs that were discovered. And her conception of the Rutgard case (see AAPS News, Nov 1996) was apparently that ``her office caught ophthalmologist Jeffrey Rutgard performing millions of dollars worth of unnecessary surgery.'' (In fact, it was only the punishment that came to millions; investigators tallied up ``unnecessary'' billings worth $65,000.)
The federal government has high expectations for Operation Restore Trust. Fines, penalties, and seized assets could help prop up the Medicare trust fund, in addition to establishing a self-funding perpetual fraud prosecution squad. Moreover, Bill Clinton has said that additional civil monetary penalties, obtained by repealing the ``deliberate ignorance'' standard in K- K, could help ``offset'' the cost of new initiatives, such as tutors to enable children in government schools to learn to read by fourth grade (see p. 2).
HHS needs a math tutor: money seized in fraud-and-abuse stings could at best cover a very small fraction of the $200 billion annual Medicare expenditures. Even to bring in $0.45 billion extra would require grossing an average of $100,000 from 1% of the nation's approximately 450,000 office-based physicians. (Multimillion dollar fines and penalties can be imposed, but once a physician is stripped of his assets and his means of earning a livelihood, the remainder is a permanent, nondischargeable debt.) How many times can such amounts be confiscated from members of one profession?
Physicians should not need a tutor to read the handwriting on the wall (although, judging from calls to AAPS headquarters, professional coders are ahead of them in comprehension). In the best of circumstances, litigation takes years, and a legislative solution (repeal of K-K) appears impossible in the present climate. Therefore, before January 1, physicians had better do some math.
Business as usual is fraught with peril. Unlike at the racetrack, we can't give odds. But any of the following appear to increase the risk of an invasion by the federal police: high income; high volume; jealous colleagues; disgruntled employees (especially if you have accused them of slander or theft); an unhappy patient; an unhappy family member (especially one on a crusade for socialist ideals); a foreign accent; residence in a locality targeted by Operation Restore Trust; or practice in a targeted specialty (psychiatry seems especially dangerous).
Most physicians being law-abiding citizens, they usually try to run a ``squeaky-clean'' operation. The problem is that the law is complex, incomprehensible, and ever-changing. HCFA anticipates more than 3,000 changes in ICD-9 diagnosis codes and a like number of changes in procedure codes for 1997. Physicians have only so much time to devote to preparing claims; the government has unlimited time and resources to devote to finding errors. Moreover, the government appears to have unlimited discretion to define error. And government can pay substantial rewards (up to 30% of the damages can go to a qui tam relator) to those who ``help'' prosecutors.
Most encounters with the federal police won't be as disastrous as the Krizek or Rutgard or Velez-Ruiz cases. The damages are likely to be mere tens of thousands of dollars (some for the feds and some for your lawyer). These losses are not an insurable risk for physicians (although professional coding consultants can buy errors and omissions insurance).
Once a physician's reputation has been stained (as by a mere accusation announced on television), he can expect no help from professional organizations that curry favor with the government in order to accomplish their own agenda.
So what can physicians do? The essential act that triggers the application of these laws is filing (or causing to be filed) a claim for payment to any insurer.
But can physicians avoid filing claims? Before saying that this is impossible, remember that 20 years ago, most physicians did not file claims. Insurance is bought by patients to help protect their assets in the event of a catastrophe. Collecting reimbursement from the insurance company (preferably after making payment for medical services) is traditionally and rightfully the responsibility of the insured.
Many physicians got into the claims filing business as a service to their patients, even before the federal government required it for Medicare. However laudable the motive, filing claims can be made to appear self-serving, as to obtain prompt, and often larger payments. A scapegoat is thus made.
There is also a new moral issue. Filing insurance now almost assures violation of confidentiality, without patients' knowledge, if data are entered into networked computers.
It's time for physicians to mount their own Operation Restore Trust. The first step is to take stock. Can physicians continue to serve their patients under the new regime, and must they accept a dramatic decrease in gross income to do so?
The fire started in the files that Dr. Velez-Ruiz and her husband Edgardo Perez-DeLeon need to continue their fight to vindicate themselves and to amend an unjust law. Both have felony convictions on their records, and Mr. Perez-DeLeon served a year in the Ingham County Jail (AAPS News, 2/96).
It was a ``professional job'' of arson, according to investigators. The area had been doused with gasoline.
The office, constructed of concrete block, is not covered by insurance. State Farm cancelled coverage about two years ago, purportedly because of a $4,000 lien on the building.
Though the neighborhood is poor, it is still a community. Patients are giving their labor to repair the roof, restore electrical power, and save water-damaged records.
``My no vote was a protest on principle against the outrageous pro-fraud language, specifically the advisory opinion option provision; the woefully inadequate privacy safeguards of one's most personal medical records; the multimillion dollar give away to a drug company at the expense of consumers; the destruction of consumer standards for Medigap policies; and the lack of mental health parity.''
The ``loopholes'' include 205, Health Care Advisory Opinions; 216, Anti-Kickback Exception for Managed Care Plans; and 231(d), Clarification of Level of Knowledge (The ``Should Know'' versus ``Deliberate Ignorance'' Standard).
The last provision ``makes it more difficult to impose a civil monetary penalty (CMP) in the Medicare program by increasing the government's burden of proof in CMP cases. The provision leads to costs because anticipated CMP recoveries assumed in the baseline will not be achieved in certain cases where the government cannot meet the new burden of proof.''
Provider participation is the sticking point, stated J. Crossan O'Donovan, president of the Maryland chapter of the American Academy of Pediatrics, especially in rural areas where computers are lacking. Providers don't want to spend any more than three seconds on data entry. He discussed technology for rapid data entry a seminar in Maryland.
Oregon is not waiting to resolve problems with the technology. Nine private offices are involved in a test of a peel-and-stick bar-code system. Parents send an enrollment form to the Oregon Health Division, and a unique identification number is assigned. The eventual goal is that ``when an enrolled child returns to the office, the provider's receptionist will call an interactive voice mail system while the child waits. The office will then receive by fax a list of the vaccines that are to be administered.''
As Dr. Lawrence Dunegan of Pittsburgh points out, this system moves toward ``liberating'' children from their parents and removing the influence of a private doctor. Children's services could be in the hands of ``providers'' who are ``human resources'' in school-based clinics, injecting whatever the bar codes instruct, perhaps without even knowing what the children are actually receiving.
The Arizona Daily Star reported that ``pressure for a nationwide health indexing system became acute'' after the Kassebaum-Kennedy health insurance reform bill became law. Organizers say that the centralized medical index will eliminate inefficiencies by cataloguing ``every encounter you have with a doctor, clinic, hospital, insurer, or HMO.'' It would provide a ``common gateway'' to all existing patient information systems (American Health Line e-mail newsletter 9/17/96).
``It is impossible to maintain privacy once medical records are centralized and computerized,'' stated attorney Andrew Schlafly.
Dr. Pravetz complains that Wilson, in the course of investigating an anonymous complaint, has ``harassed and outraged'' his patients, invaded their privacy, and ``is actively causing serious damage to their already fragile mental condition.'' Wilson is also being sued by a law enforcement officer because he released the officer's medical records to his employer with unqualified allegations.
Patient lists were allegedly taken from Dr. Pravetz's office by a secretary/office manager to use for malicious purposes. She left her employment after being accused of embezzlement.
The Kentucky Board of Medical Licensure, as a statutory body, does not acknowledge confidentiality and permits the seizure of psychiatric records.
However, when 59 11-year-old girls attempted to say ``no'' to an external genital examination by a school-appointed physician, they were told that they had no choice. A nurse blocked the doors, one girl was prevented from climbing out the window in her underwear, and the frightened children were not permitted to call their mothers.
Pennsylvania health guidelines require a ``comprehensive'' examination on all students in certain grades. The genital exam is a ``very important part of the physical'' [and presumably of the computerized medical record], said eight area physicians (Washington Times 4/27/96). School officials said they needed to check for genital warts and signs of sexual abuse, and that the procedure was legal and approved by the school board. Is This Forced Abortion?
Commissioner Gary Glenn of Boise, ID, passes along reports of a conversation with a pediatric cardiologist in Texas. An ultrasound specialist is purportedly being paid by an HMO to detect fetal heart lesions. Parents of affected babies are reportedly offered a free abortion but told that if they choose to carry the child to term, any medical expenses related to the heart defect would not be covered by the HMO. Verification for the story is being sought.
Dr. Hurwitz has appealed to Virginia state courts on the ground that the Board of Medicine failed to follow Virginia's Intractable Pain Act. Dr. Hurwitz and four of his patients also filed a federal lawsuit in the Richmond Division of the Eastern District of Virginia on the grounds that the summary suspension and its indefinite continuation without hearing violated the federal Constitution and that the state board's regulatory action violated both the Americans with Disabilities Act and the patients' constitutional right to seek medical treatment for the relief of pain.
Dr. Hurwitz's personal funds have been exhausted by legal defense costs, though a Hurwitz Litigation Support Fund has been established at Tate & Bywater, 2740 Chain Bridge, Vienna, VA 22181. Many of his patients have been unable to obtain adequate care because other physicians live in fear of similar DEA- initiated actions against them should they choose to prescribe therapeutic dosage levels. Further information can be obtained from Dr. Hurwitz at (703)351-6646.
Most state medical boards think that it is not legitimate to treat chronic noncancer pain with narcotics (AM News Sept 23/30, 1996). Dr. Hurwitz believes that narcotics are a better alternative than the Kevorkian method.
When facing an enemy
With superior resources and power
Where the prospects of losing are high,
One must remember that to lose
Is only temporary; to give up is forever.
The warrior who carries honor
As his shield and truth as his sword and
Who never gives up fighting for what is
Can never be totally defeated!
Lawrence R. Huntoon, M.D., Jamestown, NY
My office got a call from a Mr. Walt Stone today, who works
in the central FOIA office of HHS, and according to my wife, ``he
was spitting mad.'' I sent out a whole barrage of letters asking
about the ``official HCFA policy'' on finance charges for
Medicare patients. I made the request under FOIA so that if they
didn't answer, I could cite yet another violation of law by this
bureaucracy....Apparently, they didn't like this, and Mr. Stone
wanted to have a little talk with me. My wife, of course,
informed him that HCFA should put its response in writing. Does
this guy think I was born yesterday? He thought I was going to
let him get away with some verbal response only to deny later
everything that he said. My wife thinks he was practically
foaming at the mouth because I couldn't come to the phone, but
patients first, you know....
Lawrence R. Huntoon, M.D., Jamestown, NY
Those Poor HMOs are having a rough time getting a start in
Idaho, according to a Sept. 27 article in the Idaho
Statesman. They don't dare state the obvious reason-doctors
are slow to sign up. The doctors might get a clue! My standard
question to everyone: can you show me ONE MCO in existence
without any doctors? If the medical profession is destroyed in
Idaho, it will be at the hands of the doctors, as the medical
profession continues its march away from practicing medicine
within the bounds of the Oath of Hippocrates, winking at abortion
and euthanasia (or at worst embracing them), and, without so much
as a whimper, yielding its very substance into the hands of
managed care, the fundamental principle of which is denying care
for profit. Perhaps an enraged, venomous serpent with forked
tongue, about to strike, would be a fitting substitute for the
traditional symbolic caduceus.
Vernon L. Goltry, M.D., Boise, ID
In Hindsight...The laws which permit the Dept. of Health, Education, and Welfare to subsidize these private HMOs from federal funds are something new in legalized plunder and I believe must be unconstitutional....Your reporters have shown what Americans can expect when they permit their elected representatives to turn over their medical care to the federal government....However, they have not shown how federally subsidized HMOs will be federally controlled even after they are self supporting and how it is intended by HEW that these HMOs will provide the organizational structure on which to build a national health program.
When Congress is allowed to pass a National Health Insurance
Act and Medicare is forced on us all, many billions more in tax
money will be taken from us and turned over to these same people
to redistribute with equal abandon. Costs, already high, will
rise to astronomical levels and care will be limited, controlled,
standardized, and rationed.
F.M. Ball, M.D., The News and Courier
Sept 17-20, 1997. 54th annual meeting, Chicago, IL.
Thou shalt spend and spend. Shutting down the government is no longer a politically correct option for Congress. The Clinton public relations strategy of painting House and Senate conservatives as irresponsible extremists works.
Overall, though, this Congress showed some guts. Taking on Medicare took uncommon political courage. They did reduce discretionary spending for the first time since 1969; they eliminated 270 government programs; and they obtained passage of 65% of the provisions in their Contract with America. Clinton vetoed the rest. They cannot be accused of not making good on their promises. The question is whether Americans want the leaner government they keep saying that they do; and if they really want a fatter government, do they want to pay for it in higher taxes? Or in higher deficits and a lower standard of living? This is America's big decision.
New Federal Mandates On health care policy, this ``conservative'' 104th Congress has actually lurched to the left. Question: Is there more or less government control over the medical sector of the economy? With the passage of Kassebaum-Kennedy, with its vast federal data collection, unprecedented federal regulation of health insurance, and new federal penalties and fines on doctors and other ``health care providers,'' the question answers itself.
The Kennedy-Kassebaum bill is only the beginning; it has paved the way for still more federal regulation of the private sector. During consideration of the Veterans Administration and Housing and Urban Development appropriations bill, Senator Bill Bradley (D-NJ), secured adoption of an amendment that would require health insurance companies to cover mothers and newborns for at least two nights in the hospital after birth. Physicians organizations generally support the idea, for the very good reason that HMOs are shortchanging the most vulnerable members of society.
The Congressional Budget Office (CBO) estimated that this new provision would increase private-sector medical costs by $180 million in 1998 and $220 million in 2001. It would also add $223 million over four years in increased outlays for Medicaid and the plans competing in the Federal Employees Health Benefits Program.
Liberals in Congress, of course, understand that, and thus attacking the private sector at its weakest point, have established for the very first time a federally mandated benefit for private insurance. There is no preemption here of state benefits, the more than 1000 such benefits that are imposed on private insurance by state regulators-Congress is just imposing an addition. Hillary Clinton signalled that this would be a top Administration priority during her speech at the Democratic National Convention in Chicago. If you can't get it all in one fell swoop, just keep nibbling away and pretty soon you are more than halfway to your goal. The Clinton Administration has not given up on having the federal government run American medicine. But, like Napoleon, they know that the best tactical maneuver is to concentrate your forces at the opponent's weakest point. They have done that, and the hard-rock conservative Congress, who vowed that they would fight to the death against any attempt to halt federal expansion over the health care system, collapsed in a whimper. Who is going to vote against protecting mothers and their newborns? Well, nobody. Good strategy.
The next piece was the rehash of an earlier effort on the Kennedy- Kassebaum bill by Senator Pete Domenici (R-NM) and Senator Paul Wellstone (D- MN), the Senate's chief advocate of Canadian-style socialized medicine. The idea was to use the VA-HUD appropriations bill to impose a second federal mandate: the mental health ``parity'' amendment. This amendment would require group health insurers who offer mental health coverage to offer the same degree of mental health coverage that they offer for physical illnesses. The CBO estimated that this amendment, pared down from the earlier version offered during the debate on the Kennedy-Kassebaum bill, would raise costs by $618 million over 5 years. In order to soften the blow to small businesses and others, Senator Phil Gramm (R-TX) successfully offered a modifying amendment that declared that if the mental health parity provision resulted in a premium increase of greater than 1%, then the parity requirement would not be applicable. Nonetheless, the precedent has been set. The Congress is duplicating the government benefit-setting practices of the several states.
A third weak point is being attacked simultaneously: HMO ``gag rules.'' There is not much debate on the question of whether private insurers should set rules that prevent doctors and patients from having the freest possible communications regarding treatment options. Conservatives and liberals alike see the HMO ``gag rules'' as unethical, and bad policy.
Just before the close of the 104th Congress in September, Senator Ron Wyden (D-OR) and Congressman Greg Ganske (R-IA), a respected conservative physician, teamed up to put an end to the practice. The Wyden Bill would create another federal civil monetary penalty of $25,000 for each violation of the anti-gag rule clauses by a private insurance company. If you pass a federal law covering millions of transactions, as the Clintons have shown us, you have to be prepared to set up a major policing mechanism to enforce these new rules.
A study of the Ganske bill (HR 2976), conducted by the Multinational Business Services Inc, a consulting firm employing former career staff from the Office of Management and Budget (OMB), estimates that the bill would require between 3600 and 7000 employees in a new Office in HCFA to oversee its enforcement and investigate the complaints, depending upon assumptions about the complaint levels. With just a 0.5% complaint rate, according to MBS, HCFA would have to conduct 1,727,814 investigations per year. The complaints would also become fodder for the trial lawyers, and there would be an explosion of litigation.
The MBS report has been criticized for representing the concerns of private insurers, but the firm nonetheless has an excellent professional reputation. Their exhaustive analysis of the Clinton Health Plan uncovered 818 federal mandates embodied in the huge legislation. Needless to say, Members of Congress, who relied on MBS during the big Clinton health care fight, are not in a position to question its credibility merely because they now don't like the results.
The answer, of course, to abuses by private insurance is simple: Set up a system that enables the consumers who are abused by HMOs, or managed care plans, or any other insurers to fire their insurance company or refrain from choosing these insurers in the first place. That cannot be done, of course, unless Congress changes the tax treatment of health insurance.
The political tide is now running strongly against managed care. Clinton's new Health Care Commission, headed by HHS Secretary Donna Shalala and Labor Secretary Robert Reich, is seizing on the abuses of managed care to advance the Administration's broader agenda of rekindling interest in some version of his humongous health care plan. Moreover, Clinton himself, who at once proposed putting virtually all Americans into managed care plans run by his 200 or so regional alliances around America, and who now proposes to limit the choice of the elderly to managed care plans, is leading the parade; he knows that the managed care arrangements themselves are likely to become increasingly unpopular.
According to a September 1996 survey of 1503 respondents, conducted on behalf of the AMA,77% of Americans would rather pay more in order to select their own physician; 76% would rather pay more to get medical services immediately, 72% would rather pay more to use a hospital of their choice, and 53% would pay more to have the latest technology available to them. Among doctors, the survey found that of the 1010 doctors surveyed, 81% said that the patient-doctor relationship suffered in MCOs. (The poll was reported in the Aug/Sept 1996 issue of the Southern Medical Journal.)
At the same time, the supporters of HMOs, which now cover 60 million Americans, are being rocked by the latest four-year study of patients in Boston, Chicago, and Los Angeles, conducted by John Ware of the New England Medical Center (JAMA 1996;276:1039-1947), which reports that elderly and poor patients being treated by HMOs had worse physical outcomes than similar patients being treated in fee-for-service medicine. The study covered 2235 adults aged 18 to 97 and included 822 people over age 65. A decline in physical health was reported by 54% of HMO patients compared with 28% of fee-for-service patients.
The Road To Regulation
This Congress, ostensibly committed to rolling back government regulation in 1994, only imposed more of it in 1996. It is an iron rule of policy: Regulation begets more regulation. And the fact that doctors might temporarily benefit from federal interventions against insurers-even for the best of reasons like the odious managed care ``gag rules''-is not sufficient reason for them to support it. Insurance is just the means to financing health care services. As Professor William C. Hsiao of Harvard University, the main author of the dreadful RBRVS nonsense, argued back in the 1980s, the ultimate goal of policymakers is to control the doctor's decisions. Battles between private sector insurance and physicians are self defeating.
The way out: consumer choice. Allow individuals and families to make the key decisions in the system.
It Takes the Village To Control The Parents
Members of Congress are infuriated that for almost three years, the Food and Drug Administration (FDA) has tried to keep home drug testing kits out of the hands of American parents. The reason: positive drug test results could cause ``family discord,'' so parents ought not to be able to find out if their kids are using drugs. At the same time, the FDA has approved identical kits for employers to drug test their workers. The logic: employers are capable of dealing with workers who test positive, but parents aren't capable of dealing with teenagers who test positive.
It gets better. The FDA position is that the home drug testing kits (basically consisting of a plastic cup and a mailer) are a Class III Medical Device, and thus subject to the same level of agency scrutiny as CT scans, cardiac pacemakers, and X-Ray machines. No kidding. The labs that perform tests are fully licensed and routinely perform analyses for employers and hospitals and drug rehab organizations. Congressman Thomas R. Bliley (R-VA), Chairman of the Commerce Committee, disclosed the notes of a November, 1995 meeting between FDA officials and manufacturers of the drug testing kits. These revealed that officials did not approve the sale to parents because parents ``may disagree'' on whether their kids should be tested for drugs, creating ``family discord'' and ``coercion.'' Children ought not to be ``coerced'' by their parents-only by the Village.
Sunny Cloud, an Atlanta housewife who has been distributing the simple kits to other parents, has been threatened with tough legal action by the FDA.
Aborting the Truth
The debate on the partial birth abortion is over in Congress, but doubtless it will continue for the next several weeks and well into the next Congress. The reason: 71% of all Americans support the Congressional ban on partial birth abortion that President Clinton vetoed in April of this past year. The House of Representatives overrode the Presidential veto on September 19, 1996 by a vote of 285 to 137. In the Senate, the veto override attempt failed, by a vote of 57 to 41.
President Clinton justified his veto by claiming that the partial birth procedure is medically necessary and that he was trying to protect American women from serious injuries, including loss of the ability to have future children. He also stated that the number of such procedures is very small, no more than 600 per year.
Clinton's position is being undermined by numerous physicians, including
C. Everett Koop, M.D., former Surgeon General, who is telling anyone who will
listen that Clinton has been getting bad advice on this one. In turns out
that in just one New Jersey clinic, just one, there are as many as 1500
partial birth abortions per year, and the abortionists in New Jersey
admitted to the New Jersey Sunday Record that only a minuscule number
of these abortions were done for reasons of medical necessity.
Other questions asked by some: Are the organs being harvested after
partial birth abortions? And during the course of the floor debate, Senator
Rick Santorum (R-PA) asked Senator Barbara Boxer (D-CA) what if, in the course
of the abortion, the baby's head slipped out before being punctured by
scissors? Was it justified to kill the baby then? Senator Boxer never
answered the question.
Other questions asked by some: Are the organs being harvested after partial birth abortions? And during the course of the floor debate, Senator Rick Santorum (R-PA) asked Senator Barbara Boxer (D-CA) what if, in the course of the abortion, the baby's head slipped out before being punctured by scissors? Was it justified to kill the baby then? Senator Boxer never answered the question.