News and Analysis (July/August 1998)

New Medicare E&M Service Documentation Requirements

Apparently the AMA leadership is a bit out of touch with the views of the rank and file AMA membership. At the interim AMA meeting in Dallas recently, the delegates were expressing "physicians" strong concerns with documentation guidelines the Association is crafting with the Health Care Financing Administration" ("House Voices Concern with Rules on E&M Documentation," AMNews, Dec. 22/29, 1997, p.3). The AMA leadership courted HCFA, and now AMA members have, to their shock and horror, awakened to find this great big ugly thing in bed with them. Delegates now recognize that documentation errors might be viewed by HCFA as evidence of fraud, that corrective action is needed against what they view as "excessive documentation requirements" for services, including documentation of a plethora of clinically irrelevant negative findings, and that all of this excessive documentation is going to cost physicians a lot of money which likely won't be considered at all by HCFA in determining fees. Dr. Thomas Price, an alternate delegate from Georgia, observed "the premise of these rules is that if it isn't documented, it didn't occur, and you may be subject to massive fines or imprisonment" A proposal submitted by the Georgia delegation to completely rescind the new AMA/HCFA guidelines failed by only a single vote. The AMA initially obtained a six-month delay in implementation of these guidelines, a delay which has now been extended indefinitely due to physician protest. HCFA's strategy is the same as that employed by managed care companies --- i.e., if physicians don't collaborate with us and do it to yourselves, we'll do it for you without your input. There is, of course, an alternative to the "shoot yourself or we'll do it for you" approach; it's called fighting back. Although newly elected AMA President Dr. Percy Wootton talks the good talk in his address to AMA delegates ("Keeping Out The Outsiders," AMNews, Dec. 22/29, 1997), what he urges physicians to do with respect to these guidelines doesn't seem to jive with his speech. "Whether it is government, or insurers or any other outside force that would infringe on our relationships with our patients, there is no room for three chairs in my office, and I'm sure there's no room for three chairs in yours either." Apparently however, there is room for a third chair or two for the government at AMA headquarters, however, because the AMA "has committed to educational initiatives for physicians [so that they will learn to comply with AMA/HCFA guidelines] and the AMA is encouraging that specific concerns with the guidelines be brought to the AMA's CPT Editorial Panel, its liaison with HCFA on the matter." In a letter to President Wootton from HCFA, HCFA makes it clear that they expect complete and immediate cooperation from the AMA: "We strongly encourage physicians to begin using the new guidelines as soon as possible so that they will have become familiar with them when they become the only standard in July." Dr. Thomas Price concluded that these new AMA/HCFA guidelines "infringe upon the most important asset of a physician, which is his or her clinical judgment. This is not just the criminalization of medicine, but the dumbing down or mediocritization of care." How right he is and how shameful that the AMA is participating in this process to the detriment of the entire profession.

On April 27, the AMA held a "fly-in" meeting with HCFA officials, state medical organizations, and representatives of specialty societies to discuss the planned (July 1) implementation of the new E&M Guidelines. Practicing physicians had mounted a storm of protests against the out-of-touch AMA leadership. It was the AMA (which holds the copyright) in partnership with HCFA that had, in fact, authored these nightmarish guidelines. In a unexpected move, HCFA representative Richard Berenson, M.D. (director of HCFA's Center for Health Plan and Providers) read a letter from Nancy-Ann Min DeParle, HCFA's head administrator, stating that "HCFA intends to direct carriers to indefinitely delay implementation of the examination portion of the E&M Documentation Guidelines set to go into effect July 1, 1998. This means that the examination guidelines set forth in the 1995 E&M Guidelines (e.g., comprehensive exam = single-system specialty exam or 8-12 affected body areas or organ systems) will again become the standard. (The Medical Management Institute, 1125 Cambridge Square, Alpharetta, GA 30004-1863.)

Physician Apathy Leads to Erosion of Medical Staff Self-Goverance

It seems that there are always those who are watching and waiting for every opportunity to dominate and oppress others. If constant vigilance is the cure, apathy clearly represents the downfall. Just look at the atrocious things physicians have done to themselves via changes in their own medical staff bylaws. "One hospital board requires that staff members center 90 percent of their admissions and consults at the hospital, while another requires staff applicants to participate in Medicare, Medicaid and Managed Care plans that have contracts with the hospital." ("OMSS --- Fighting Erosion of Medical Staff Self-Governance," AMNews, Dec. 22/29, 1997). And another hospital requires physicians to sign their "secret" ballots or their votes won't count. This is purportedly being done so that the hospital administration can see how individual physicians voted and be able to apply appropriate pressure to those who, in the hospital's view, may have voted the "wrong way." Then, there's the increasingly difficult problem for certain hospital-based physicians who are deemed to be economically or politically incorrect by the hospital administration being denied access to hospital equipment needed to practice their specialty. Their privileges are maintained while their ability to practice is destroyed.

Cognitive Dissonance

A survey conducted by the National Constitution Center found that "only 5 percent of Americans could correctly answer 10 simple questions about the Constitution" (Walter E. Williams, "Ignorance About Constitution Really Is Bliss," The Post Journal, Dec. 18, 1997). Only 6 percent could name the four things guaranteed by the First Amendment. Twenty-five percent couldn't even name a single First Amendment right, and one respondent thought that the First Amendment included the right to "freedom from fear." Now that's downright scary! Another respondent stated that the Constitution was actually written in France. And, one respondent who apparently never heard of the Bill of Rights, thought that the first 10 Amendments were actually the Pledge of Allegiance. Despite this widespread ignorance, "91 percent of Americans surveyed said the Constitution is important to them." Walter Williams goes on masterfully to explain the concept of cognitive dissonance. People have a need to change their perceptions to fit what they know. After all, if Americans realized the limitations imposed on government by Article I Section 8 of the Constitution, "how could we possibly accept Congress' spending billions of taxpayer money on education, health care or midnight basketball, when not even the words (education, health care and basketball) appear in the Constitution?" Thus, when compared to cognitive dissonance, ignorance, Williams points out, is bliss. But, Williams, of course, doesn't stop there. He goes on to speculate that an unscrupulous tyrant might adopt the strategy of changing the educational curriculum of the young so that they would never actually find out about the Constitution. Instead, the children could be taught that "the federal government's duty is to make sure income is distributed fairly, take care of the poor and the aged, and do anything that a majority of Congress decides is good for us." And, never make mention of the fact, of course, that we are actually a Republic, not a nation based solely on mob rule. I wonder what non-profit Foundation might fund such an educational initiative?

Lack of Physician Wealth --- A New Criteria for Exclusion from Medicare

I was appalled to read about the new "Criteria for Implementing Permissive Exclusion Authority" under Section 1128 (b) (7) of the Social Security Act as proposed by HHS.

HHS will be able to demand private financial information from private physicians so as to determine if the physician has "sufficient wealth" to make it worthwhile for the government to pursue legal actions against him, and if the physician lacks "sufficient wealth," he can be expelled from the Medicare program. It is clear that if you make what the government considers to be "too much" money, you are a

target for fraud and abuse investigations, and now, if HHS/HCFA gets its way, if you make "too little" money, you are a target for complete exclusion from the Medicare program.

AMA Caduceus Speaks with "Forked Tongue"

In an article in AMNews ("Let's have zero tolerance for government hassling," Nov. 24, 1997), AMA chair of the Board of Trustees, Dr. Thomas R. Reardon, tells us that "we also have zero tolerance for unfair and unfounded hassling of physicians by any branch of government, any time, any place." Although the AMA is to be applauded for recently filing suit against HHS/HCFA for their "guilty until proven innocent" shakedowns of multiple teaching hospitals across the nation ("Suing for an altered PATH," AMNews, Dec. 1, 1997, p.19), we note it is the AMA in its "private sector/public sector partnership" with HCFA that is bringing us the impossibly complex and atrociously intrusive new "Documentation Guidelines for Evaluation and Management Services" (see Medicare B Bulletin, Dec. 1997). On page 19 of this Medicare Bulletin, you will note the following article - "New E&M Guidelines from AMA and HCFA." If these new E&M guidelines go into effect, HCFA will be able to use these impossibly complex and intrusive guidelines to demand refunds from physicians for lack of compliance. This AMA-HCFA initiative is truly a blueprint modeled after the KGB slogan --- "show me the man and I'll show you his crime." You will note that even private laboratories are starting to threaten physicians on behalf of the government for performing lab tests that the government considers "medically unnecessary." Where will it stop?

Government Fear and Oppression is Profitable

The Medical Management Institute is providing a course on "Medicare Compliance." The front cover of the brochure contains a sample letter sent to a physician from Medicare requesting a refund "overpayment" in the amount of $165,330.66. Medicare reminds the doctor that he is responsible for correct claim filing procedures when billing and accepting payments. We note that the focus is on "assigned" claims --- another timely reminder to physicians everywhere that one sure fire way to become a government target is to take the government's money!

Shakedown

Speaking of government abuse, the article "The Dangerous Expansion of Forfeiture Laws" by James Bovard which appeared in The Wall Street Journal, Dec. 29, 1997 pretty well sums it up. He says "The vast expansion of government's forfeiture power epitomizes the demise of property rights in modern America." Just like the IRS, he says "Federal agents can confiscate private property with no court order and no proof of legal violations." "Law enforcement officials love forfeiture laws because a hefty percentage of the takings often go directly to their coffers." Even the Justice Department admits to this legalized plunder: "A September 1992 Justice Department newsletter noted: Like children in a candy shop, the law enforcement community chose all manner and method of seizing and forfeiting property, gorging ourselves in an effort which soon came to resemble one designed to raise revenues." We have now gone from federal bureaucracies like HCFA, IRS, ATF, DOJ considering citizens to be "guilty until proven innocent" to "innocence is irrelevant!" Forget about "show me the man and I'll show you his crime." Now, it's "show me the man's money and property and I shall take it!" And, it's all done very "politely" and "legally." According to Chief Justice William Rehnquist in the same article, "The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority." Excuse me sir...have you ever heard of a thing called the Fifth Amendment? Mr. Bovard concludes that "Justice Rehnquist basically granted government unlimited power to steal." Apparently one of our Congressmen, Mr. Hyde, noted this abrogation of our constitutional rights and set out to submit a bill to correct the situation, but alas, he got cold feet and succumbed to pressure and lobbying from the Justice Department and he let them write the "reform" legislation. Mr. Bovard observes "This is like letting burglars write the laws on breaking and entering, since many of the worst forfeiture abuses are committed by Justice Department employees."

More Skulduggery by "Organized Medicine"

The recent edition of Today's Internist had some informative articles. In "Moving Your Practice Into Managed Care: Making the Transition," (Today's Internist, Vol. 38, No. 6), we learn what role physician leaders should play. "Physician leadership also can help to change providers' mindset from an independent, productivity-based model to one that is organizationally focused." Now, I know I made the right decision to drop my membership in this ASIM organization. They go on to tell us that "To be successful, capitation requires changes in physician behavior, systems, support and group culture." This article was written by a man who has an M.D. and a masters in health administration. And in another article in the same issue ("The Human Genome Project: Implications for Medical Practice," by C.A. Francomano, M.D. and F. S. Collins, M.D.), they apparently are looking to President Clinton for guidance and leadership. They tell us that Clinton is in favor of "supporting the American people in their quest for genetic knowledge that ultimately will improve the health of the nation." It sounds like someone may be toying with the notion of "genetic cleansing." Of course, once they have mapped your entire DNA sequence, they will have a very unique way of accomplishing administrative tracking and simplification of our healthcare. There won't be any need to argue over whether to use our Social Security Number or generate some other new number for the unique patient number they intend to assign to all of us soon.

HMOs Hemorrhaging RED INK

HMOs throughout the nation are bleeding RED INK. Those poor, poor HMOs are just losing money hand over fist...sob...sob...sob. Oh what a world...what a world. Some who have been playing the "doctor float" (i.e., delaying payment to doctors for months on end) are being fined millions of dollars ("Oxford Health Plans Fined $3 Million by State," Buffalo News, Dec. 24, 1997). And the darling of the Clintonites, Medicare HMOs, are losing money so fast they're going out of business ("S.C. Blues to stop Medicare HMOs," AMNews, Dec. 15, 1997). Now you see em...now you don't. It seems the federal government just isn't paying enough to allow the poor managed care CEOs to live the high life they have become accustomed to living off the backs of patients and their doctors. And, you remember all of those "FREEBIES" the HMOs were using to sucker patients into signing up with them? Free drugs, free toasters, free turkeys. Well, it seems that at the end of the day, there is no FREE LUNCH. The Medicare HMOs are starting to prune all of these popular perks.

HMO Executives Choking on "Free Market" Rhetoric

For years, HMO executives have been telling us that managed care is simply a free market mechanism, and that doctors will simply have to work for little or nothing because that's the way the "free market" has decided it should work. HMO executives have told us that they deserve those multi-million dollar salaries --- just look at how much money they have saved employers. And, those government subsidies given to managed care, government promotion of managed care and legislation which gave unfair advantage to managed care, those were all just Big Government lending a little assistance to make the "free market" work better and offer more choice to the consumer. You remember, "managed competition."

Well, the "free market" concept of "managed competition" has just become lodged in the throats of highly paid HMO executives, and they are frantically searching for paid friends in the legislature to perform the Heimlich maneuver before they pass out. The perverted and false concept of government-managed "free market" was OK as long as it worked against physicians, but now that the New York State Legislature is suggesting that government control HMO executive salaries, I suspect we will hear a slightly different rendition of their view of government-managed "free markets." Legislation is currently being proposed which will impose a three-year freeze on HMO executives making more than $125,000 per year (i.e., more than I make) if they file for a rate increase of more than 5 percent.

Lose Your Constitutional Rights --- How Bad Can It Really Be?

Well, just ask Amanda Buritica, 51, from Port Chester, New York. She was "strip searched, X-rayed, and forced to defecate in front of airport customs agents" because she "fit a profile" of a possible drug runner ("Woman wins $450,000 in suit over indignities by customs," The Buffalo News, Feb 26, 1998).

She "was subjected to body searches for some 22 hours." Customs agents "put her through a strip search and an examination by X-ray...They took her to a hospital and induced her to ingest a powerful laxative that caused her to have 28 involuntary bowel movements while observed by two customs agents over an eight-hour period. No drugs were found."

The article didn't mention the name of the hospital and the doctors who participated in torturing the poor woman at the request of the government. In my view, both the hospital and the doctor(s) should lose their license to treat patients for agreeing to participate in these crude and abusive acts committed on a healthy person.

HCFA Violated FACA in Drafting E&M Guidelines

The AMA is not a federal employee. HCFA held meetings with the AMA to draft the E&M Guidelines. These meetings were not open to the public, they did not publish who the participants were, what was discussed and no public comment was obtained. The government cannot claim that they didn't use the advice provided by AMA advisors, because they have published the E&M Documentation Guidelines giving credit to the AMA on the title page.

At the bottom of the title page it states "American Medical Association, Health Care Financing Administration May, 1997." It just doesn't get any clearer than that.

Physician Seeks Nomination for WV Congressional Seat

AAPS member, Dr. Richard S. Kerr of Morgantown is seeking the Libertarian party's nomination for the U.S. House of Representatives from West Virginia's 1st congressional district.

Dr. Kerr is currently a partner in Women's Health Care of Morgantown and has operated a private medical practice in obstetrics and gynecology in Morgantown since 1973.

We wish him well!

[The Inter-Mountain, Elkins, WV, Thursday, April 9, 1998]

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This edition of News and Analysis was compiled by Lawrence Huntoon, MD, a member of the Editorial Board of the Medical Sentinel of the AAPS. It originally appeared in the Medical Sentinel 1998;3(4):114-117. Copyright©1998 Association of American Physicians and Surgeons.