Saturday, July 14, 2012

"Don't Expect the Feds to Apologize"

     I was having a meeting with my lawyers,  just the three of us in a conference room of formidable grandeur, the walls of which were lined with green hardcover books, all the same size, in glass-enclosed bookcases.
     I wondered if the books were real, as I had seen a site on-line for buying facades of similar bookcases.  Probably the facades were being marketed as decorative pieces to lawyers, who must be using the internet, not books, for research these days.  Or maybe they were for people who wished to be lawyers but didn't have the ambition for all that schooling.  I was wishing to be a lawyer these days.  Then I wouldn't be wondering,  Are these lawyers good, or are they just going to use me?
     Adding to the gravitas was the mahogany table where we were about to "meet." We were occupying only a small section near the door  The rest of the table stretched impressively down the entire length of the room and I watched our shadows crossing on its mirror-like sheen in the moments when we were exchanging pleasantries and wondering who should be the first to take a seat.  Perhaps it should be me, for the sake of etiquette, as the only woman--and of an age that brinks Emily Post.  Or should it be one of these dark-suited men who, after all, were supposed to be showing me the way out of this hornets' nest I had been coming to see them about.
     I made a move, smoothing the back of my dress, and they made moves, shuffling papers, touching the armrests of the swiveling chairs and talking importantly about a "case" one of them had had at the courthouse that morning.  Then I got impatient and sank decisively into my chair, which was comfortable but felt a bit low.  I calculated, vaguely, that given two lawyers this was costing me about twelve dollars a minute, and I didn't want to spend it hearing about someone else's case.  But that's probably because I don't know how to appreciate the value of "good old boy" networking.  It doesn't come naturally to me, that's for sure.  I am not and never can be part of the invisible"club"--("There's no club," the lawyers would dispute, were I so gauche as to bring it up)--and like anything we're not good at, it's easy to scoff and pretend it's not of great consequence.
     Some women can chat and jest in situations like this, poised on the edge of two worlds, making it look very natural to talk about racecars or football scores, and I wanted to be one of them.  But I also  wanted to have a quick meeting, figure out a "game plan" (the lawyers' phrase), and get back to the clinic where patients were waiting.
     This was not my first meeting with these two lawyers.  I had told them about the FBI raid on Colasante Clinic and the government theft of my bank accounts, the sale of my clinic in Hawthorne, the treacherous Pat McCullough who pocketed all the assets of that clinic and reported me for "fraud" in a skillful manipulation of federal agents, who are after all rewarded for "taking back" private money from citizens (in fact their paychecks depend on it) and don't need much inducement from whistleblowers.
     The lawyers had reviewed my billing and coding practices and had strained their minds to imagine what the FBI agents and prosecutors could be thinking.  What misinformation had they been given to prompt them to take all my patients' records, and paralyze my medical office?  How could our government's justice system have acted so punitively toward a clinic that appeared to function in such an efficient and beneficial way for people in this neighborhood?   Why wouldn't they even discuss their suspicions with us, if the wrongdoing implied by their terrible attacks posed such a threat to society?
     "I can't imagine what they're thinking," my first lawyer said.  "There's absolutely no justification for criminal charges here.  I just don't think they have a case."
     "So will they return my patients' charts?  Will they refund the money they took from my bank accounts?"
     "Let's not jump to conclusions!"  the second lawyer said.  "It's not going to be that easy."
     "What do you mean?"  I asked.  It seemed simple to me.  If there wasn't a criminal case to be fought, then the case should be closed.  "My life won't ever be the same," I went on, "because the feds have damaged my reputation--but I'd like to put this behind me."
     "It's not that easy," Lawyer Two said.
     "Let me explain," Lawyer One began, setting both palms on the table between us.  "The feds have filed criminal and civil charges against you.  This is their usual way of doing things.  If they can't find evidence to substantiate criminal charges, they'll drop the case to a civil one."
     "What if there is no evidence for civil charges, either?" I asked.
     "They're pretty good at finding something, even if it's nitpicking.  The statutes allowing them to take your money are very broad.  If their coding specialists review your charts and determine that you overbilled for an office visit based on their interpretation of your written notes and the time they think you spent with the patient, they can extrapolate that to hundreds of thousands of dollars owed by you.
     I knew he was right.  I had read the Cato Journal article by Grace-Marie Turner describing in detail how the federal government decides whether a doctor is "fraudulent" or not.  The national health care fraud and abuse control program created by HIPAA in 1996 has allowed--and incentivized--federal agents to prosecute doctors for what amount to ambiguities, at best, in the interpretation of a doctor's written chart notes and the degree to which those notes support the level of coding (i.e., billing) for the visit.
     Like most physicians across the country, I am a Medicare provider.  Since Medicare is a federal insurance program (funded by Medicare taxes withheld from every paycheck), "crimes" committed against Medicare fall under the jurisdiction of the federal government--hence the attack by the FBI and federal prosecutors on my clinic.  Documenting less in an office note than the federal government's coding clientele think supports the charge is, therefore, a federal crime punishable as a felony and resulting in indictment, prosecution, huge fines, and even imprisonment of a physician.  I had to take my lawyers' advice seriously.
     But I knew that documentation of office notes, however laborious, had always taken precedence in my clinic.  I instructed providers and nursing staff in proper documentation and coding every day.  The notes we all stayed up late at night to write were not particularly helpful to us, the doctors and nurses who took care of patients every day.  After all, we knew these patients and had taken care of them for many years.  I could rattle off most patients' medical problems, lab test results, medications, side effects, and symptoms from memory.  I knew what tests we had just done for a patient, and why, what medicines worked and what didn't work, the type of heart murmur he had, the size of his liver, the configuration of moles on his back, even the state of his toenails.
     No, office documentation is for insurance companies and lawyers, not for those of us who care for patients every day.  Nevertheless, since the federal government had outlined how much writing we had to do in the chart to justify a charge to the government, we spelled it all out:  the exact reason for the pelvic ultrasound in a patient with postmenopausal bleeding;  the painstaking explanation for a chest x-ray in a patient with very low sodium;  the rationale for a stress test in a patient who didn't exactly have chest pain;  the intricacies of our thought processes--in fifth-grade language that a clerk sitting in an insurance company cubicle, or an FBI agent, unschooled in the art of  medicine, might understand.
     So many of the decisions about testing and treatment happen in a doctor's mind as a combination of intuition, experience, and intimate knowledge about a particular patient's risk factors and family history, that "explaining" how we think is difficult and, on paper, never quite the truth.  Nevertheless, the government since HIPAA had decided that it could fathom the complex inner workings of a doctor's mental processes (aren't we all closet-doctors, anyway?--how hard can it be?) and prosecute doctors when it didn't quite get the picture from the handwritten explanation in the chart.  So at Colasante Clinic, as at my previous Hawthorne clinic, we documented as though our lives depended on it.
     "What if my clinic's office documentation is excellent?  What if there are no grounds for civil charges?" I asked the lawyers.
     We had just completed an outside audit of the medical records at Colasante Clinic, using a coding specialist from New York, someone who didn't know anything about me.  The "error rate" for documentation was only four percent.  But some of my signatures weren't legible, and some of the written support for diet, smoking cessation, and substance abuse counseling was included on standardized forms.  These things might count against me.
     "Well," pondered Lawyer One, "You're going to have to give the feds something."
     "What do you mean?"  I wanted to know.
     "They're not just going to go away."
     "But if there are no civil or criminal charges, why won't they go away?"   
     "That's not how they work.  You've got to give them something," he said.  "I propose we make a deal."
     "I don't want to make a deal.  I don't admit to any wrongdoing," I answered, the tone of my voice rising.
     "Making a deal isn't admitting to wrongdoing.  But the feds have to recoup their losses."
     "They need to give back my patients' charts and my clinic's money, and disappear, " I said with vehemence.  I stood up to go.
     Lawyer Two intervened.  "I understand you're upset," he said.  "But you've got to understand how the federal government works."
     "They need to acknowledge the harm they've done to me and my clinic, and return what they've stolen," I insisted, as though we were talking about right and wrong--as though "justice" might really be about right and wrong.
     "Don't expect the feds to apologize," Lawyer Two announced.  "They don't do that."
     "Not even when they've made a mistake?"  I was thinking about the narcissists I've known, people who never thought they'd done anything wrong.  Was the federal government narcissistic?
     "He's right," Lawyer One corroborated, shaking his head.  "Don't expect the feds to apologize.  It's just not done."  

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