From the President...
Abuse, Lies, and Audio Tape
Lawrence R. Huntoon, MD, PhD
Once upon a time...in 1991, Medicare allowed Dr. Freeman A. DoRight to charge $101 for an ultrasound procedure. Shortly thereafter Medicare instituted a scam called RBRVS. Using the RBRVS scam, by January 1, 1999 Medicare lowered the fee that Dr. DoRight could charge to $16.05. Hardly worth the effort for $16.05, but Dr. DoRight continued to provide the service to his patients. In the meantime, Medicare, in apparent collaboration with the AMA Correct Coding Policy Committee, instituted yet another scam called the "Correct" Coding Initiative (CCI). On July 1, 1999 using this new CCI scam, Medicare lowered the fee further for the ultrasound test to ZERO! Of course in HCFA doublespeak, they told Dr. DoRight he really wasn't being paid zero for this service, because it was bundled into another service for which he was receiving the grand sum of $33.90 for performing. But Dr. DoRight being a stubborn fellow, just couldn't seem to get past that ZERO. It doesn't matter how you phrase it or "bundle" it, ZERO is still ZERO, and when one is being paid ZERO for one's services, one becomes nothing more than a slave. Recalling that in 1865 the Thirteenth Amendment outlawed slavery in these United States, Dr. DoRight took offense to his new position as government-mandated slave and set out to fight back. But, how does one fight back in a system where government bureaucrats make up, interpret, and change the rules to suit their whims as they go along?
Well, the next step was a Medicare "Fair" Hearing. Now if ever there was an oxymoron, it's the phrase "Medicare Fair Hearing." There is nothing fair about it. The Hearing Officers you see, work for Medicare. Of course, in HCFA doublespeak, they refer to these Hearing Officers as "impartial," but make no mistake, they work for the Medicare carrier and are loathe to bite the hand that feeds them. Nothing can stop these Hearing Officers from finding a way to rule against the doctor --- not the law, not regulations, not science, not logic...nothing. So, Dr. DoRight dutifully played their game and sent hundreds of pages of documentation to support his position. After which, Medicare carrier employee Darlene Deceitful wrote to Dr. DoRight and told him he had "sent no medical documentation" to support his position. Dr. DoRight's case, however, was a slam dunk, no brainer. After thoroughly researching the issue, Dr. DoRight discovered HCFA had implemented a totally contradictory regulation. When HCFA implemented the CCI for the ultrasound procedure, they agreed to allow the use of the -59 modifier. The -59 modifier signifies a separate and distinct procedure. If it's separate and distinct, it can't be bundled using the CCI reasoned Dr. DoRight. You can't have it both ways.
Recognizing Dr. DoRight was about to reveal this information which would force HCFA to rescind its idiotic "Correct" Coding Initiative nationwide, Medicare appointed attorney Mr. Isure Liealot to "hear" the case. Having had vast experience with the deceitful nature of those who work for Medicare, Dr. DoRight informed Hearing Officer Liealot he would be taping their conversation. Attorney Liealot likewise informed Dr. DoRight he too would be recording their conversation and warned Dr. DoRight he had better stick to the truth. Attorney Liealot warned Section 1877 of the Social Security Act provides that anyone who makes false statements in the course of a Fair Hearing, false statements which affect payment, is subject to a $10,000 fine, one year in prison, or both.
The day of the hearing arrived and Dr. DoRight was ready for battle. But within minutes, Hearing Officer Liealot informed Dr. DoRight he "was not authorized" to help his patients and that according to Medicare regulations (12019 and 12005) non-participating physicians had no standing to appeal. Only participating physicians could appeal, said Attorney Liealot. And thus, all of Dr. DoRight's claims under appeal were summarily dismissed. But, this isn't what the Medicare regulations say at all.
There are three ways non-participating physicians qualify to appeal and Dr. DoRight had met the necessary requirements to have standing to appeal. Recognizing Dr. DoRight had caught Hearing Officer Liealot on tape, doing what he did best, Attorney Liealot later changed his reasoning to conclude it was all just a "fee schedule dispute" and no one has any right to appeal the Medicare fee schedule. Why, that would be akin to blasphemy for anyone to question the adequacy of Medicare fees which the modern day Pharisees and scribes have so carefully written on stone tablets. But what about thou shalt not lie? ...and Section 1877 of the Social Security Act? Didn't Hearing Officer Liealot break this law when he lied to Dr. DoRight? Had Dr. DoRight lied to the Hearing Officer, you can sure bet he would be coughing up the $10,000 and would be looking at life through jail bars for a year. Whatever happened to equal protection of the law?
As we all wait with eager anticipation for the ending of this story where Medicare Hearing Officer Liealot is fined and goes to prison and Dr. DoRight lives happily ever after, the story lingers peacefully in the twilight zone. The storybook ending hasn't happened yet and may never happen. Justice may not be served. And although the names in this story are fictitious, the story is completely true.
The purpose for telling the story is not to hold a pity party for Dr. DoRight nor to organize a lynch mob for Attorney Liealot, it's to shout from the bully pulpit: What do we do about it? We have many non-participating physicians in AAPS who suffer this same type of abuse on a daily basis at the hands of this tyrannical HCFA/Medicare bureaucracy. We write about it; we complain about it; we give speeches about it; and we swap horror stories about it; but it's difficult for the individual physician to do much about it. What we need is aggressive legal representation at the Fair Hearing level, the Administrative Law Judge level and the Federal District court level. What we need is a Physician Advocacy Division of AAPS. Who better to do this than our own AAPS? We need to build upon our reputation of fighting back such that Medicare and HCFA bureaucrats will think twice before subjecting our members to more abuse and lies designed to deprive our member physicians of their due process rights.
Yes, we still have rights, but only if we stand up and vigorously fight for them together. If we fail to fight back in an organized and effective manner, HCFA and Medicare will pick us off one by one with little or no resistance while we all sit by and watch. We need to doggedly pursue civil litigation, prosecution and prison time for HCFA and Medicare bureaucrats who break the law and violate our rights. Who wouldn't want to be a member of such an organization? Ethical principles combined with aggressive legal action equals real help for our member physicians.
With your help and support this can become a reality and we can do it.
Lawrence R. Huntoon, MD, PhD is president of AAPS and a practicing neurologist in Jamestown, New York.
Originally published in the Medical Sentinel 2000;5(4);121-122. Copyright©2000
Association of American Physicians and Surgeons (AAPS)