Doctors Threatened With Jail

For decades, doctors have been in the crosshairs of trial lawyers.  Now they are increasingly in the crosshairs of prosecutors threatening jail sentences.

In the murky world of Medicare and Medicaid rules, it is very easy to make a false claim. In one experiment, a researcher contacted five different government Medicare billing advisors about a possible claim and got five different answers about how to handle it. So even if a doctor stopped practicing and instead spent full time supervising each and every bill, the government can easily claim error and thus fraud.
It isn’t that every error will be treated as fraud. It is just that it could be. This is a powerful weapon of intimidation and reprisal.
Medicare and Medicaid claims are often paid by mail. And of course each instance of “mail fraud” as defined by the government can also fetch five years in prison. Electronic billing may change this, though as we have pointed out in other articles, it will also violate your medical privacy.
Medicare fraud is admittedly a giant problem. Only about 5% of claims are audited, and estimates of the total volume of fraudulent claims range from 10 to 20%. Given the Medicare budget of around $450 billion, this is very big money. But most of this fraud is organized theft, not individual doctors trying to cheat the system.
In response to the fraud problem, Congress passed more laws during the Clinton administration designed to punish cheating both in federal programs and in state programs with any federal financing. The trouble with these laws is their vagueness. They include under fraud treatments that are “not medically necessary.” It is of course the government itself which decides how to interpret this, and the government is lobbied by and heavily influenced by the AMA and the pharmaceutical industry. In most cases, natural therapies would definitely be categorized as “not medically necessary” and thus fraudulent—and criminal.
Keep in mind also that it is not just doctors that defraud the government’s medical programs. Drug companies have also been found guilty of this. Although they have paid some fines, we haven’t yet seen any Pharma executive go to jail, and no one expects that ever to happen.
In 1996, Senator Ted Kennedy added to the Health Insurance Portability and Accountability Act new anti-fraud provisions providing for jail terms of up to ten years. If a patient dies while being given the “medically unnecessary” treatment and the government decides that the treatment caused the death, the doctor can go to jail for life. This legislation also extended the anti-fraud provisions to cover bills submitted to any “health care benefit program.” Under federal law, health care benefit programs include private insurance as well as federal programs. So now a doctor can go to jail for getting on the wrong side of a private insurance company.
Meanwhile if a doctor signs up for a drug research program, he or she had better follow FDA regulations to the letter. Although the legal situation here has not been fully sorted out by the courts, the FDA takes the position that an infraction of its rules may be a felony.
Given all this, you can see why ANH-USA has sounded the alarm about the new jail terms targeted by the FDA at supplement producers that has been included in the House version of the Food Safety Act.
But it doesn’t take any new legislation to put a doctor in jail for doing things that are quite innocent. This is not only unfair to doctors. it is unfair to all of us. Once we succeed in getting all Americans medically covered, we will need a lot more doctors, not fewer. Will they be there? If not, how much do you think it will cost to see one of the remaining doctors?
But it doesn’t stop there.
News has just broken that the US Department of Justice, together with the Idaho Attorney General (note that this is a bipartisan operation), charged a group of Boise orthopedists with a criminal violation of the antitrust laws. What had they actually done? They got together and discussed what to do about the very low fees offered by the State Workers Compensation Program.
Result: thoroughly intimidated doctors signed a draconian ten year consent decree agreeing to accept the Idaho Industrial Commissions’ price controls. Most of the doctors also agreed to rescind any threats of withdrawing from Blue Cross of Idaho. Keep in mind that Blue Cross is a private insurance company. As such, it is itself exempt from antitrust laws. And state and federal governments are also exempt. it is just the doctors who are subject to it.
News accounts also suggest that the doctors were “persuaded” to hire a high priced lawyer who until recently worked for the same division of the Justice Department that was suing them. This is part of a well established pattern of government intimidation practiced by government agencies including the FDA as well as the Justice Department. Once you have talked a very scared plaintiff into a consent decree, you require that they hire former employees of the agency at very high prices for further representation or compliance. If you are a government employee, you don’t make money on this arrangement right away. But when you leave the agency, the buddy system ensures that you will get your turn at these spoils.
The excuse for this inexcusable behavior? It is that the expensive former government employee being foisted on the scared plaintiffs knows the ropes about how to comply with the consent decree. And there will be masses of compliance work to do. The doctors face ten more years of compliance and have agreed among other things to submit detailed written reports, submitted under oath, whenever required by their tormentors. Bottom line: the doctors will work all day for a pittance as required by the decree and spend their “spare time” filling out reports.
If doctors met together and decided what to charge the general public, they would of course be engaging in a genuine violation of antitrust laws. But note that this is primarily a case of doctors responding to a government price control. The constitution expressly permits us to assemble, to talk freely, and to petition the government. That is why the doctors’ consent decree explicitly says that they can do those things even though they have actually been prosecuted for doing them. As William Norman Grigg noted in his recent article about this travesty, “How are the doctors supposed to comply with the Final Judgment, given that its guidelines distinguishing ‘Prohibited’ from ‘Acceptable’ conduct make no sense?”
But making no sense is what it is all about. The government puts in rules that only a lawyer can figure out. If a doctor violates any of them, there is the threat of jail to ensure compliance with price controls or anything else. That is the whole idea.
And even if the consent decree were not written in gobbledegook, can you imagine the doctors standing up for their constitutional rights now? It takes a great deal of courage to do that with the threat of jail and losing your license hanging over your head.
Will doctors have to unionize to beat this new antitrust-related gag order? Remember that unions are exempt from antitrust legislation too. That is how unionized workers can discuss together what they will accept for pay. But if doctors get swept up into some vast union, that might well accelerate the drift toward government-mandated, one-size-fits-all medicine.
If doctors don’t unionize, they had better not expect any help with price controls from the courts. An American College of Cardiology suit against Medicare pay cuts was recently dismissed by the US District Court in south Florida. The reason: the court said it had no jurisdiction, and that the federal government could do whatever it wanted about prices.
Parents: it may be time to reconsider. Maybe you don’t want your child to become a doctor, or marry one. Maybe that’s a thing of the past.