Why Are All Doctors Being Threatened With Jail…

June 21, 2016

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.
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Other articles in this week’s Pulse of Natural Health:
 GMOs and Glyphosate Safe?

25 responses to “Why Are All Doctors Being Threatened With Jail…”

  1. Alan McLemore says:

    NO.
    This bill is a sham, pushed by the Koch Brothers to free them and other criminal polluters from personal liability when the commit climate crimes:
    Links apparently not permitted here, but you can google search “american prospect dangerous bedfellows” for an excellent article describing the scam.
    Do NOT support this dangerous piece of corporatist garbage. Better rules can and should be written, but in this era of runaway corporate criminality, we must NOT weaken what tools exist for bringing corporate criminals to account.

    • ddduke says:

      While your linked article does address the abuses of mens rea when applied to the industries discussed therein, it seems irrelevant in the context of the Orin Hatch bill. Doctors and family physicians are not corporate criminals and Hatch’s bill is an intelligent response to the pharmaceutical (corporate) biased legislation which shackle intelligent medical decisions. Discernment needed.

      • Alan McLemore says:

        Perhaps there are some good parts of the bill. But it still amounts to a “get out of jail free” card for the management of corporate polluters. (The giveaway is that it is being proposed by a corporatist Republican, so there’s always some slimy “catch” to it.) And that is the reason it must be opposed. Any good parts of it are so outweighed by the bad that nobody in good conscience should support it.

  2. figs says:

    I wonder what the writer considers “natural treatments”?

  3. Prof. Sydney Bush says:

    If you are so honest why are you not supporting abolition of coronary heart disease, thrombosis, stroke etc via CardioRetinometry as Linus Pauling said was possible and now proved according to Cardiologist Dr Matthias Rath MD writing about reduction of CHD now visible in Retinal arteries
    in his book Why Animals Don´t get Heart Attacks But People Do. Pp 39,40,41. His claim to be the first to record reduction of arterial disease (CHD) is challenged y CardioRetinometry reporting this in 2002 with images from 1999 showing retinal arterial and hence coronary improvement.

  4. lberbs49 says:

    I found this piece very confusing. It seemed to be a Pro-Doctor or Corporate piece absent of the impact on patients, except for doctors administering erroneous treatments to churn a profit. It seems either way THE PATIENT LOSES! Shouldn’t the focus be on creating a WIN FOR THE PATIENT, if at the expense of the doctors who can more afford it?.

    • Krissy Anderson says:

      There is no win for a patient anymore.

    • Excuse me says:

      Pro-doctor? Pro corporate? If the government wasn’t running providers ragged with regulations that potentially reduce CONSUMER choices, and subjecting them to dangerous drugs and procedures promoted by INSURANCE and BIG PHARMA, everyone could be better off. I’m not sure how the Koch brothers have anything to do with this. I see patients regularly that enter my office denied sensible solutions to chronic diseases, placed on statins, proton pump inhibitors, or joint replacement surgery who would be better served to be given bioidentical hormones, nutritionist consults, a few sessions with a personal trainer, and stem cell injections to promote cartilage repair. If you see something sinister here, it is the workings of a Congress for hire. They don’t work for you, they work for their clients–the ones with money–Big Pharma and Insurance. I cannot remember the last time a law was written to curtail the absolute power of those two entities to favor the American people.

      • ddduke says:

        I agree. I see no evidence that Koch Bros, et al, would benefit in any way from this specific legislation. I do not know how or why they have even been brought into this discussion. Over the years Sen Orin Hatch has stood on the side of supplements and individual choice in such matters. I don’t agree with some of his other positions but he has a long track record of being on the right side of this bet.

  5. kitty56 says:

    We need Universal Healthcare and we need to kick people like the Koch Brothers out of America.

  6. James Robertson says:

    WOW! Be careful Doctors.

  7. raul says:

    Figs “natural treatments” is what i decided for myself, not the FDA, for example it’s my choice if i want to receive say IV high dosage of vitamin C treatment for flu or any other
    illness under my Doctors supervision, i don’t need and don’t want the FDA telling me
    that the only other choose i have is patient medicine, this is the direction the FDA is
    going, with CEO’s of pharmaceutical drugs seating on the board and going after treatments that have been proven for years their effectiveness, & safety for many years
    and there are studies from way back early 1900, 40’s, 50’s, 60’s,70’s,80’s, 90, to present
    time. The point Figs is this was at one point a democracy, which use to mean freedom
    of choice to seek treatment that i think is best for me, where i want to live, freedom,
    of speech, freedom to challenge the FDA abuse of their power (authority) and the
    representatives of all states (congress) to hold them accountable, this is what this Bill
    is about this is been going on for years the FDA violating are right to choice what’s in are best interest not Big Pharm.

  8. DAOWAce says:

    Also chiming in here.
    This article seems pro-corporate/doctor (not pro-consumer), which has not been the focus of this site. In fact, it’s even telling people to drop the only medical coverage we have, just so doctors aren’t potentially sued.
    It doesn’t help that “doctor” is an ubiquitous term for many different types of specialists, including ones that are nothing like a traditional “doctor” we’ve all grown to hate.
    At least, that’s the impression I’m getting with the way it’s written, and as such I’m not supporting the bill.
    Staring to be wary of reports on this site from now on.. Please work on the clarity of articles, and make sure they’re pro-consumer too.

  9. jay says:

    I think they should have more strict in area of not just any mumbo jumbo natural treatment provided. Though it’s true natural medicines and treatments can be affective. There are also a waist of money not affective treatments. They should be required to spend more than just a few throwing out some random treatment. My money waisted pisses me off and I’m not rich. So I disagree with no regulations period as most natural medicine taking people would. Get real seriously. How lame. Md Doctors have rules natural doctors are no exception. We can’t have treatments randomly given. I have had poor natural doctor treatments. One stereotyped my history no approval by me and tried telling me to take chemical meds. Another throwing me what just popped out of her mind. No thought bullsh*** I support stricter laws.

    • Krissy Anderson says:

      My new doc told me I had Lupus from my first exam. (I already knew I had it but my blood is negative – not uncommon). But after getting my blood tests back she said I didn’t have it. I said Lupus is NOT diagnosed by blood only, and there is no absolute test. She denied. I also have seronegative RA, but only one doctor ever diagnosed it and agreed with it. If those non-believers saw my crippled joints and x-rays now, they would have to eat it. There is so much absolute fraud and corruption in our government I am astounded. I never believed it when people would say that, until I became a researcher in medical. Wow, this country is so corrupt it’s not even possible to ever fix it. Election year: meh, nothing’s going to matter.

    • eyesandears says:

      Medical care in the US was much better and efficient decades ago when there were vastly fewer regulations on the books. The massively increased numbers of ‘rules’ has left the doctor with severely restricted service and testing options, limiting the provision of individualized care when the patient requires treatment falling outside of the ‘rules.’ Think of it in these terms: Are you more productive in an environment where a few basic rules are given, or in one where you must consider hundreds of rules impacting each minute of your working time? Cookie-cutter policies and micro-managing lead to a decreased efficiency and creativity (by stifling enactment of innovative solutions). Also, government laws and recommendations are typically decades behind…and often wrong to begin with. Let’s not forget the government telling us that high salt intake ’causes’ high blood pressure; it only took them 25 years to admit that error and, even then, it was not well publicized.
      The poor provision of medical care today stems from numerous factors: the worship of money as primary, corporatization of medicine, educational factors, and a general societal decline in morals, ethics, and respect. The solution is self-responsibility; exercise the principle of ‘do no harm’ and learn what must be learned to adequately care for yourself.

      • jay says:

        Makes sense. Never knew that but what you expressed Definitely makes sense. Though how to achive such a goal. I really don’t think would be achievable thru democrats. Unsure of republicans other than they claim they support less government. Thanks for educating me. Logics didn’t bother me but doctors throwing me random impulsive bs diagnosise’s & treatments did. Health and things required in this world shouldn’t be so ridiculous expensive and should be made where somebody in poverty level income could afford. Putting a price on life and allowing anybody to die over such is sickening and lame. Don’t know if agree

    • Lori 227 says:

      You say you have had poor “natural Doctor” treatments. I will tell you that my daughter who died at age 24 had poor MD doctor treatments and poor care. We protested their recommendations for her, which had not worked before, and were characterized as uncooperative parents. MD docs do not want to listen to their patients, They have the GOD complex and the government and FDA are the same.
      Taking away your choice of treatment, natural or big pharma, it should be up to you, not government telling you how you want your health care delivered.

  10. JG says:

    The bill is about adding a default intent (mens rea) requirement to laws.
    Theses are just examples, along with the example given about dog leashes…

  11. DOCS says:

    ‘Murika needs to stop electing stupid people and @$$#0LE$ to congress…

  12. Ashok Jaisinghani says:

    Every doctor must be provided with a book containing all the laws that have to be followed by the medical profession and the healthcare workers in hospitals and clinics.

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