Just for doing their job? Please support Senator Hatch’s new bill! Action Alert!
There are now over 5,000 federal statutory crimes and over 300,000 regulatory crimes on the books—though Americans are unaware of an overwhelming majority of them. As a result, it has been estimated that the typical professional unknowingly commits several federal crimes in the course of a single workday. (Dog owners, beware! It is now a federal crime to walk your dog on federal lands with a leash that is longer than six feet!)
It may sound absurd, but these obscure crimes have become a problem of real consequence, especially for those in the healthcare profession.
Doctors operating in today’s labyrinth of regulations—particularly integrative doctors, who are often targeted by the medical establishment and federal authorities, though all doctors face the same problem—are extremely vulnerable to prosecution and jail time on arbitrary or even trumped-up charges.
Many of these “crimes” derive from new laws and regulations enacted through the 1990s with the stated goal of preventing healthcare fraud and abuse. While there is certainly massive fraud in Medicare, these laws in practice have created a situation where an innocent error or the slightest deviation from standard practice can land a doctor in jail.
The reason? For most crimes, the statutory language explicitly requires that there be criminal intent, also called mens rea (Latin for “guilty mind”). Mens rea means that prosecutors must prove that a defendant acted with the knowledge that he or she was committing a crime. It is meant to prevent Americans from unwittingly becoming criminals by breaking a law, particularly an obscure one. Unfortunately the mens rea concept has been omitted from too many obscure laws—particularly the newer ones.
US attorneys know this. They have also discovered that even the threat of prosecution and arbitrary penalties is enough to intimidate most doctors into paying hefty settlements to avoid jail time, even larger fines, and/or having his or her license revoked. The money collected through these schemes is then used to fund more fraud investigations.
Happily, new legislation introduced by Sen. Orin Hatch (R-UT) seeks to address this problem by adding a default mens rea standard for all statutes and regulations that lack an explicit intent requirement.
Here are just a few examples of the absurdities created by this system—and why Sen. Hatch’s bill is so important:
- The Health Insurance Portability and Accountability Act of 1996 (HIPAA) added anti-fraud provisions providing jail terms of up to ten years. According to the law, if a patient dies while being given a “medically unnecessary” treatment paid for by an outside party and the government decides that the treatment caused the death, the doctor can go to jail for life. Yet even Medicare cannot tell a doctor in advance what it considers “medically unnecessary.” This legislation also extended the anti-fraud provisions to cover bills submitted to any “healthcare benefit program.” Under federal law, healthcare benefit programs include private insurance as well as federal programs. So a doctor can go to jail for getting on the wrong side of a private insurance company.
- Medicare and Medicaid rules represent a hopeless minefield for doctors. Some of the laws passed in the ’90s were designed to punish cheating both in federal programs and in state programs with any federal financing. The trouble with these laws is their vagueness. “Not medically necessary” and “fraud” are defined the same way, even though they are potentially very different. This also provides an opening for the AMA and the pharmaceutical industry to try to rule what doctors can and cannot do. In most cases, natural therapies—which are usually much safer and often more effective—are categorized as “not medically necessary,” thus fraudulent, thus criminal. In this way, medical care has become a very high-risk profession. Note also that drug companies themselves could, in theory, run afoul of the fraud regulations, sending Big Pharma execs to jail. But federal rules specify that if this happens, the government cannot purchase drugs from the company in question for years, with the result that Big Pharma executives never go to jail, not matter what frauds they commit.
- It is also very easy for a doctor 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. And relying on these advisors is not allowed as a legal defense! So even if a doctor stopped practicing and instead spent all of his or her 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 This is a powerful weapon of intimidation and reprisal.
- We told you in 2014 that Medicare will no longer pay for more than one medical test a year that is not directly related to an illness being treated by your doctor. In theory, the patient could pay for the additional testing, but if those tests are deemed “medically unnecessary,” your doctor could go to jail for writing that prescription if he or she bills Medicare for the test. And here is a further Catch-22: it is illegal for your doctor to bill you personally for something that Medicare does cover, even though finding out what Medicare does or doesn’t cover may be next to impossible. And if your doctor wants to discuss the results of the test and prescribe a course of treatment, all discussion and treatment during your visit must be about that original ailment, even if you’re now sick with bronchitis instead. If you want to discuss the bronchitis, you must make another appointment.
You can avoid all these problems by staying out of Medicare. Then your doctor can prescribe what he or she thinks best. But even if you can get or afford alternative medical insurance, keep in mind that the government will deny you any Social Security payments if you have not signed up for Medicare. Another alternative is to sign up for Social Security, which will automatically enroll you in Medicare A and B, but then tell the government to remove you from Part B. Part A is hospital services, and that is enough to keep your Social Security. Part B covers the doctor’s office, and if you don’t have it, then the doctor cannot be charged with billing you for services covered by Medicare.
- This same broken system also discourages technological innovation, since each new test or treatment must go through the time-consuming process of getting a Medicare billing code and then convince Medicare to actually pay for the service, which is very difficult and often takes many years.
The irony is that this criminalization of doctors—particularly doctors who favor natural treatments—has done little to actually stop the medical fraud perpetrated mostly by real criminals but also by some doctors. We’ve previously reported that when Medicare reduced reimbursements for oncologists in 2003, some physicians started giving their patients more expensive chemotherapy and other cancer treatments in return for kickbacks from the pharmaceutical companies. A study found that these doctors could buy drugs at a discount and then dispense them at the higher Medicare rates in their offices, in effect profiting at the expense of the patient.
This brief list of abuses raises the question: who in his or her right mind would choose to practice medicine under these conditions? There’s no easy fix, but Sen. Hatch’s legislation requiring evidence of criminal intent will at least curb many of the more arbitrary and ridiculous abuses.
Action Alert! Please write your senator now to support this vital bill. Please send your message immediately.
Other articles in this week’s Pulse of Natural Health:
GMOs and Glyphosate Safe?