Sunday, July 15, 2012

Making a Deal with the Feds

     If you're a doctor and the FBI has raided your office, it's not likely you'll ever go to court to argue for your rights.  
     If you're a doctor and federal government agents walk into your bank one day and withdraw all the money, putting it into their own coffers without giving you or your bank or your lawyers an explanation, it's not likely you'll ever see the money again.  In fact, they might come back and take more.
     The federal government is allowed to do these things because it's been empowered by HIPAA with dozens of statutes giving them license to invade medical clinics and take money and supplies.  They get to keep everything because the threat of prosecution and arbitrary penalties forces doctors to "settle" rather than go to court.  "Settling" means giving the federal government a lot of money in exchange for getting them, maybe, to go away.  Fighting the federal government in court, one Tallahassee attorney told me, would cost me $1 million.  "Maybe more," he added.  Who has that kind of money for defense?
     Why would the federal government invade and steal from doctors?  "That's where the money is," quotes Grace-Marie Turner in her 2002 article, "HIPAA and the Criminalization of American Medicine."  I guess I'm helping my country in its Sisyphean efforts toward solvency..
     "Health care has become the prosecution of choice for many U.S. attorneys--especially fraud relating to the provision of medical services," the article goes on to say.  "Demonizing the entire medical community with the broad brush of 'fraud, waste and abuse' trivializes real fraud and sets up an adversarial tension in every patient-physician encounter."
     Not only has the federal government been given lots of money for prosecution in its fraud and abuse control programs, but whatever money the FBI seizes in the form of penalties imposed on doctors or the resale of property taken in a raid, is funneled back into the fraud and abuse program's trust fund, which is then used to finance more fraud and abuse investigations.  "Federal health care authorities have a huge financial incentive to extract settlements and judgments from health care providers," Turner says.  
     The system must be working pretty well, because the June 16, 2011 raid on my small clinic required thirty to fifty FBI agents and prosecutors, all uniformed and armed, all on the government's payroll.  (But wait, aren't those our agents?  And isn't it our--the taxpayers'--payroll?)  They arrived bright and early that morning and stayed until evening, eating pizza delivered to the clinic waiting room, forbidding staff to leave until they were "interviewed," hauling charts and medical supplies into their rental vans, and storing all the things in protected, air-conditioned units.  This couldn't have been cheap.  No worries:  they figured they'd pay for it with the clinic's funds, forfeited from my business and personal bank accounts on August 6, 2011.
     My lawyers have said they can't identify a reason for the raid on my clinic.  There is no justification for criminal charges, and the analysis of coding and billing hasn't uncovered civil infractions of any severity either.  
     Many prior audits of the charts at Colasante Clinic and Hawthorne Medical Center (the two clinics I have owned)--conducted by various insurance companies, including Medicare--have been clean.  Such audits are routine, but my clinics have been special targets because I am an "outlier"--meaning that the number of services and the amount of time my staff and I devote to patients is outside the median for the average family doctor.  Being an outlier triggers insurance company audits, as their computers identify me as a potential over-biller.  Doing audits on doctors who do more and therefore bill more, sends them a covert warning to do less, "or else."  This is an effective method for controlling healthcare costs--but does it really save money in the long run to punish doctors for doing what they believe patients need?   My style of practice is very thorough, and I do procedures on site to save patients the trouble of outside referrals.  This way I get results immediately, and can talk about them with patients as we proceed with treatment.
     "We're going to have to make a deal with the feds," my lawyers told me, knowing I would balk.  "They won't just go away with their tails between their legs."
     "Wouldn't it be more dignified for us to show them there's no evidence to support what they've done to me, and ask them to return everything?" I asked.
     "It doesn't work that way," they said, and I was beginning to realize that my predicament would not be resolved by resorting to facts.  "We suggest letting them keep what they took, in exchange for dropping all the charges.  We can't be sure they'll agree."
     "But I haven't done anything wrong," I protested, "so why should I give them anything?"
     "We know it doesn't seem fair, but--"
     "It isn't fair!" I rejoined.   
     "They've taken action against you, and it's serious," the lawyers said.  "They're going to need to be compensated."
     "Shouldn't I be the one who gets compensated?" I countered, again failing to acknowledge the futility of reason.  "You're suggesting that I just give the federal government the $400,000 they took from my clinic, as well as all the supplies--to say nothing of my reputation?"
      The looked at me ominously.  "Isn't that better than going to prison?"
     "Why should I go to prison?  Aren't you lawyers supposed to prevent that?  You know I'm innocent!"
     "We are trying to prevent it.  Are you listening?  We have a plan."
     "What kind of plan is that, to give the federal government all my money, so they can save face?"
     "Some of them have careers that will be affected by this," they warned.
     "I'm not responsible for their careers," I shouted, and met their gaze with a furrowed brow.     
     I should not have shouted at my lawyers.  It's equivalent to saying good-bye.  I watched them turn away and look at the ground.  My words hung in the air.
     "Let's discuss this next time," one of them said consolingly.  "Give yourself time to think it over."
     "It might save you money in the long run," the other one added.
     And that's how another helpful session with my lawyers ended.


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