News and Analysis (March/April 1999)

Tie a Yellow Ribbon Round the Old Oak Tree

Returning home after being away at the AAPS meeting for several days always reminds me somewhat of the anxiety and apprehension disaster victims must experience on returning home after the hurricane - I always wonder if my practice is still going to be there when I get back. The annual AAPS meeting, of course, was well worth the trip, and the value of "recharging one's batteries" was self-evident in the increased attendance.

Back in town, I remain the only neurologist who does not participate in any form of managed care and who does not participate in Medicare. This ethical decision makes me very unpopular with the entitlement crowd, and the HMOs are constantly writing to me and telling me how they are sending my patients to other participating neurologists. As it turns out, however, the patient referenced in the most recent HMO letter was scheduled for an office visit on the day I returned. We, of course, figured that he wouldn't show up after reading the letter informing us that he had decided to go to one of the participating HMO neurologists in town. He did, however, show up with his family and informed us that he intended to keep me as his neurologist irrespective of any out of pocket cost. I am greatly encouraged every time this sort of thing happens, because it serves as irrefutable evidence that the free market is not yet dead despite what the HMOs and socialist elites in government would like us to believe.

 

HHS OIG 1999 Work Plan

The Department of Health and Human Services Office of the Inspector General has announced its Investigative Focus Areas for 1999 (targets): Hospitals and hospital-owned physician practices, home health care agencies, nursing homes, mental health services provided in both nursing homes and outpatient psychotherapy, medical equipment suppliers, dialysis facilities, drug reimbursement, ambulance services provided to Medicare beneficiaries, partial hospitalization services, and, of course, physicians.

Targeted areas of enforcement in the focus area of physicians include: accuracy of coding, physicians at teaching hospitals (PATH), "physicians with excessive nursing home visits," errors in automated encoding systems used in physician offices, billing service companies used by physicians, reassignment of benefits by physicians, "improper billing for psychiatric services," and patient billing records to name a few.

New York State and Puerto Rico have been selected for an extra special enforcement analysis to look at services billed but not rendered and "upcoding, improper utilization and medical necessity questions." According to the OIG, "the most common Part B violation involves false provider claims to obtain payments."

And, for all of you physicians out there who vigorously fight Medicare and pursue appeals when you have been wronged, keep up the good work! According to the HHS/OIG, "The increasing rate of provider appeals is raising Medicare administrative costs and is contributing to other problems in Medicare claim payments." While the AMA leadership and HCFA are pushing very hard to get quantitative E&M guidelines in place, HCFA, of course, has changed the way that it evaluates its own contractors in the opposite direction. "Beginning in 1993, HCFA revised this [contractor] monitoring program by replacing numerical scoring with narrative reports." Non-participation in Medicare and opting out of Medicare altogether is starting to look better and better the more we learn about planned increased utilization of government raids which will be used to bolster the failing Medicare program.

 

Guns and Logos

Now that the plans for raids on physician offices are in place, HHS Inspector General June Gibbs Brown has gone to Congress to ask permission for her agents (including private bounty hunters) to carry weapons, issue search warrants, and arrest unsuspecting suspects. Inspector General Brown has told the Senate Committee on Govern-ment Affairs that these measures are "critical to the safety of OIG personnel" ("Latest fraud plan: private contractors, more authority," AMNews, Oct 5, 1998).

We note that in days past when someone came into an office or place of business and demanded money (settlement) at gunpoint (for their own safety), that it was considered armed robbery. We don't yet know what euphemism will be assigned to this latest enforcement effort (armed legalized plunder?), but we have reason to believe Mr. Clinton is working very hard to come up with a politically correct term for this in the near future. It all depends on how you define it, you know.

We have also noted a recent strategic shift in logos in western New York. Until October 1998, Medicare's logo consisted of 1/8 inch lettering at the top of the page "Medicare B: Upstate Medicare Division." The word "HCFA" never even appeared on their official stationary. Since October, however, their new logo consists of the word HCFA in bold 3/4 inch lettering prominently displayed at the top of the page with Medicare Part B: Upstate Medicare Division in much smaller lettering and positioned less prominently. Letters received from the Medicare carrier now appear as though they are coming directly from HCFA. Hmmm...let's see: "special agents" armed to the teeth, displaying special logos (armbands?) and having carte blanche authority...yes, I think we're beginning to get the picture.

 

Medicare Is Running Out of Money

As the millennium approaches and the House Subcommittee on Government Management is telling physicians that HCFA is making dismal progress in upgrading their mission critical systems for Y2K, there is more and more evidence that Medicare is running short on funds. A Medicare bulletin informs physicians that the Medicare contractor will no longer accept claims on diskette and "that due to budget constraints, support of toll-free lines for transmission of electronic claims will no longer be available," effective Oct. 1, 1998. (Medicare B, August 1998, Upstate Medicare). You know money is running short when they can't even pay their phone bills anymore. Toll-free lines were previously available only to participating physicians in the Medicare program as an "incentive" to participate. HCFA, of course, has been talking about implementing physician "user fees" to make up some of the short fall in funding. As Medicare funds dwindle, the financial "incentives" to participate in Medicare will evaporate and government abuse of physicians and selective taxation of physicians ("users fees") will increase.

First it was Medicare home health care certification forms, and now it is ambulance transport certification forms. As Medicare funds are depleted, the government is looking for more and more creative ways to force physicians to pay for the government's failed Ponzi scheme. Medicare warns physicians about acting as an advocate for their patients:

"At times, a provider feels, as a patient advocate, that he or she should certify the need for an ambulance, even though it is inappropriate under Medicare's coverage guidelines. This is unwise since the provider's signature makes him or her responsible for that certification. Providers who sign for or order ambulance services must recognize their responsibility and vulnerability when certifying such services."

The penalties, of course, for certifying anything for a Medicare patient these days that some bureaucrat later determines wasn't "medically necessary" have become ruinous. More and more reasons for doctors to drop out of Medicare for the millennium.

 

More Medicare Mischief

And in an effort to further reduce utilization of appeal rights, Medicare is encouraging doctors to request a review by telephone instead of submitting a written request. That will insure that one of the incompetents who made the wrong decision in the first place will get a chance to reject the claim a second time more promptly by phone. At least Medicare finally admits they are the source of unnecessary paperwork, hence government waste and, I quote the Medicare bulletin, "Tired of all the unnecessary paperwork when requesting an appeal?...Call our telephone appeals line!"

 

Quantitative Medicare Guidelines For Determining Terminal Status

In a forerunner to futility of care guidelines, Medicare has promulgated new quantitative criteria for determining whether or not patients qualify for hospice care ("Hospice --- Determining Terminal Status in Noncancer Diagnoses --- Amyotrophic Lateral Sclerosis (ALS)"; Medicare B, Upstate Medicare, August, 1998).

We are told under the criteria "ALS tends to progress in a linear fashion over time" and that "the overall rate of decline in each patient is fairly constant and predictable." If that were true and we could simply reduce every illness to a set of numbers and plot out the course on a linear graph, there would be no need for physicians. We would simply need to hire a suitable number of mathematically inclined bureaucrats to plot the course of our constant and predictable lives from cradle to grave.

But as anyone who has been in medicine long enough can humbly tell you, it's not always that predictable. I have an ALS patient, for example, who has defied all odds and has remained fairly stable for the past 10 years. I also treated a patient in the emergency room last week whom by all medical criteria had suffered a massive stroke with complete paralysis on one side of his body, eyes deviated to one side, slurred speech and obtundation, who, in my view, was not long for this world. After gathering his family together and informing them of his moribund prognosis, he defied all predictability by regaining nearly completely normal function within a few hours.

This bureaucratic fantasy of quantifying all diseases and all evaluation and management services and reducing medicine to numbers is simply that --- pure fantasy. The underlying motive, of course, is for government to quantitatively ration medical care so as to reduce costs in a government-run Ponzi scheme that is falling apart before their very eyes.



AMAP Favors Large Group Practices


I called the AMA's Accreditation Program (AMAP) recently and asked if they had any kind of contract or agreement with HCFA or any other branch of government for implementing AMAP as the national standard. The person I talked to said she didn't know, but she told me somebody would answer my question and get back to me. Instead, they sent me a description of AMAP requirements!

Aside from requiring physicians to agree to in writing and to abide by the AMA Principles of Medical Ethics, AMAP requires a rather extensive office site review. This includes such things as "written emergency procedures; periodic training for staff in emergency procedures; office administrative systems with policies and procedures that support and enhance the quality of the clinical care provided; standard written procedures regarding appointments and a mechanism that provides patient feedback to assess them; written guidelines for telephone triage; standard policies and procedures to minimize patient's waiting time and a mechanism that provides patient feedback to assess them; a mechanism for periodic review of physician and office staff performance; documentation of performance reviews at least annually; review for under- and over-utilization of consultants; and an adequate number of exam rooms."

As I watched my wife help a narcoleptic patient to her car in the office parking lot today, I got to thinking about AMAP and how we didn't have a "written procedure" to cover that type of thing and hence would likely be cited for the deficiency. Yet, in a solo office run exclusively by family members, such politically incorrect deviations from unwritten procedures are commonplace and are done automatically for the benefit of the patient. I also have only one exam room in my office which is perfectly adequate for what I do, but I can't help but wonder if it would meet AMAP's criteria for an "adequate number of exam rooms" (plural)?

As I read all of the AMAP requirements for meeting the so-called national standard for quality care, I noticed that the solo, fee-for-service physician in private practice is slowly but surely being degraded and viewed as not providing quality care "by definition" --- i.e., by the AMA's definition.

For large group practices and megacorporations compliance with all of these things might be possible at significant cost, but for the mom and pop solo physicians out there, it would be virtually impossible to comply. Widespread adoption of AMAP as the exclusive accreditation mechanism, therefore, would have the effect of forcing many solo physicians out of business or into large AMA/government-approved networks or groups.

 

HCFA Announces Indefinite Delay for E&M Guidelines Is Over!

Fearing widespread and growing rebellion by physicians against the AMA/HCFA E&M guidelines, HCFA has announced that the "indefinite" moratorium is over. HCFA's "Operation Tiananmen Square" is now in effect. Despite the AMA leadership's pleading with its membership to surrender and submit to the HCFA bureaucracy, the AMA House of Delegates voted to oppose implementation of any E&M guidelines involving quantitative formulas or numeric values assigned to parts of the medical record. This action was further solidified by the AMA House of Delegates at the Interim meeting in December. HCFA Politburo's head physician, Dr. Robert Berenson warned "the house's action was unworkable and that HCFA will implement guidelines --- with or without the AMA's involvement" ("Despite AMA vote, HCFA vows to implement E&M guidelines," AMNews, July 6, 1998).

HCFA demands bullet points and a medical record that is fully reduced to numbers so that the bean counters can use this unmedical record against physicians to recoup more money. Although HCFA was very displeased with the proposal to pilot test the revised E&M guidelines, they have agreed to do limited testing prior to full scale implementation scheduled for late 1999 or early 2000. Medicare, of course, requires extensive testing of new medical treatments before they are declared "non-experimental" and accepted, but when the shoe is on the other foot, they expect that their absolute authority will go unchallenged.

AMA President Dr. Nancy Dickey is still singing the same old tired song --- "If we walk away, there's a good chance that we won't get a second chance. We'll get something created without anybody at the table." Translation: "If we don't shoot ourselves, they'll do it for us." But the President of the California Medical Association, Dr. Robert Reid, sees things a little differently. "The AMA will gain a lot of credibility by standing up to HCFA."

Of course, if you want true credibility and an organization with a long track record of standing up against intrusion of government in the practice of medicine, AAPS, not the AMA, would be the best bet.

 

AMA --- Don't Ask...Don't Tell|

Despite the fact that it was revealed in the Medical Sentinel (Andrew Schlafly, Esq., "AMA's Secret Pact with HCFA," Medical Sentinel, July/Aug 1998) that the AMA made a secret agreement with the government and misused its copyright of the CPT coding system, the AMA continues to tell its members their CPT copyright remains fully intact. "According to the report, some carriers misuse the coding system, which the AMA maintains and has under copyright" ("AMA to create CPT users group to fight misuse," AMNews, July 6, 1998). The same article goes on to tell us that some carriers are using claim editing software inappropriately for the purpose of reducing physician payments. Nothing new there. One AMA delegate said that they wanted the AMA "to expose those who aren't playing by the rules." The AMA, however, may have some trouble fulfilling his request in light of the recent ruling by the 9th Circuit Court regarding copyright rules.

And speaking of don't ask don't tell, apparently there are some who think there may be yet another bounty system in place at the carrier level. Efforts are currently under way to find out if certain carrier personnel "were given financial rewards to downcode physician services."

So despite the fact that the AMA didn't play by the rules, misused its CPT copyright, and has saddled us with a coding system that is currently being used to abuse and underpay physicians, possibly under a bounty system, the AMA House has apparently adopted a resolution which essentially calls for universal acceptance of CPT.

 

AMA Tiptoeing Back to Individual Coverage

The AMA's support of employer-based health coverage has come to an end...sort of. The AMA House of Delegates has voted to support individually-owned insurance coverage apparently in a Johnny-come-lately attempt to restore the patient-physician relationship ("AMA supports individually held coverage," AMNews, July 6, 1998).

But, so as not to get too far away from employer-based coverage, the AMA supports a model whereby the employer makes a "defined contribution" toward health coverage chosen by each employee. But, why should the employer segregate an employee's pay this way? Why not simply give the employee his or her full salary without preaching how they should use it --- i.e., "defined contribution" for medical care? Discriminatory tax laws, of course, are the reason why.

Tax laws discriminate against those who purchase their health care coverage with their own money. The tax laws clearly need to be changed. But, the tax changes that the AMA suggests to remedy this situation seem somewhat contradictory: "Once legislative enactment of a tax treatment to promote individually purchased coverage is achieved, AMA would rescind its support for full premium deductibility for those paying the full costs of their health insurance." Apparently the AMA is in favor of leaving some tax discrimination in place against the self-employed and others who purchase their own health insurance so that they won't "over-insure" and so that a government-coerced income redistribution mechanism would remain in place. "The Association would endorse an individual tax credit --- up to a limit, to discourage over-insurance --- for coverage purchased by an individual or his employer. This credit would be related to income."

 

HCFA Seeks To Gag Physician Communication With Patients

As HCFA rallies the tanks for Operation Tiananmen Square II to suppress the brewing revolt of freedom-loving physicians, HCFA warns you better not be caught telling your Medicare patients the truth about managed care. According to HCFA Politburo head physician, Dr. Robert Berenson, "Our basic position is going to be one of silence. We are not going to be carving out an area where we'll be advising or regulating physicians" (like the Section 1801 promise of no federal interference in medicine?). But, "at the same time HCFA warned, we are concerned about any inappropriate steerage based on knowledge of a beneficiary's health status or the physician's financial interest" ("Rule Raise Self-Referral Concerns," AMNews, July 6, 1998).

But, how could one ethically not tell a chronically ill Medicare patient they would be placing themselves in grave danger by joining a Medicare managed care plan? HCFA, of course, says they just want to prevent doctors from profiting by steering healthy patients into capitated plans and sick ones into traditional Medicare. Of course HCFA's underlying goal is likely to prevent physicians from profiting from the practice of medicine, period.

 

AMA Comes Clean, Admits Guilt

In a bold admission former AMA interim executive vice president, Lynn E. Jensen, Ph.D., tells the membership, "You've told us that you not only feel under assault by outsiders, you even feel abandoned by the very 'insiders' you thought were there to protect you in the first place --- including your own AMA" ("Transforming Angst into Action," AMNews, July 6, 1998).

In an admission that the AMA with many of the specialty societies essentially created this E&M crisis, he went on: "We heard repeatedly from physicians everywhere they were frustrated and angry, and we got their message." He even suggests that the AMA leadership might be out of touch with the membership whom they are supposed to serve. "When the AMA attempts to address members' issues, it sometimes goes too far out front and doesn't include the rest of you the way we should."

 

Government's Computers Tracking Physician Economic Profiles

I attended a meeting at my hospital where a quality improvement specialist (i.e., a physician previously employed as a medical director for an HMO) informed us that the government established a nationwide database in 1993 which economically profiles physicians, purportedly for the purpose of determining which ones will be allowed to participate in managed care networks associated with government programs and which ones will be excluded. HCFA has not yet responded to a FOIA request to confirm or deny the existence of this government database.

This edition of News and Analysis was written by AAPS Board of Directors member, Lawrence R. Huntoon, MD, PhD.