Tuesday, December 31, 2013

Why Smoking Marijuana is Bad

     There are good and bad things about marijuana.  These are the bad things, and they're forbidding enough for a physician, to recommend against all recreational use of the drug.
     1.   It engenders lassitude.  Though translated by users as "mellowing out," the emotional vacuity incurred by using marijuana leaves them with a sense of not having to do anything.  Prior stated ambitions and dreams fall by the wayside.  Among those of my patients who enjoyed getting high there was a high degree of stasis in their lives.  I'd ask, "Where do you see yourself in one year, five years and ten years?" and they'd answer with high-minded aspirations.  "I'm going to finish college."  "I think I'll become an engineer."  "I'd like to start a band."  "I plan to get a job, buy a house, have a family."   But time passed and they made minimal efforts in the direction of their goals.  I would ask, over the years, "What happened to your plan to go back to college?"  Oddly, they didn't know, they had no substitute ambitions, and they weren't worrying about it.
     The opposite of lassitude is concern, maybe even worry.  Worry may not be such a bad thing, if it spurs one to problem-solving and action.  I have watched many privileged lives drift into marijuana-laced nullity.  In light of the suffering of humanity and our need for solutions, this seems a dire loss;  and given the panoply of emotional experience that might flavor and scintillate life, it's regrettable that anyone should choose neutrality, which is a kind of death.
     2.  It worsens forgetfulness.  Our brains are programmed to fall into forgetfulness, an adaptive mechanism which allows life-sustaining subject matter to occupy the forefront of our attention as inessential impressions fall away.  Using marijuana seems to enhance the forgetfulness function of the brain.  Many studies have confirmed the loss of short-term memory when smoking marijuana, but I was able to observe long-term memory loss in my patients as well, especially the odd circumstance of forgetting who one truly is.  Not the details, like name, birthdate or social security number, but the big who-am-I that serves as a reference point for everything we undertake.  I have to assume that one of the chemical effects of cannabanoids is to sedate the inspiration-sustained compartments of memory, the ones that give us identity and propel us into our futures.  "Who are you?" I would ask, and they answer might as well have been, "I forget."
     3.  It causes dysregulation of one's rational apparatus.  Imagine a rabbit on weed.  How long would it survive in a tree-studded meadow where a family of hawks was circling overhead?  Would it take note, and run for cover, or would it slacken into a euphoric haze and get snatched for supper?  Imagine a fish whose circulation was infused with cannabis:  could it make those abrupt about-faces and dart instantaneously under a reef when a bigger fish appears, or not?   GIs going into battle had better not be high, because the subtle reflexes that make or break a person in treacherous circumstances are slowed by marijuana.  Humans depend less on quick reflexes to survive, and more on our capacity for rational thought.   When patients under the influence of marijuana came to see me I had great difficulty getting them to represent their symptoms in a rational way, nor could I appeal to them on the basis of logic.  They were like people with half a frontal lobe, half the part of the brain that commands and controls.  How can this be conducive to survival?
     4.  It makes people boring and trite.  A party where partygoers start smoking marijuana quickly becomes a huge bore to anyone who doesn't partake.  The smokers think they have portentous things to impart, but what comes out is lackluster, or insensible.  They want to communicate deep feeling, but whatever they're feeling, it's impossible to share because they can't carry on intelligible conversation.  PET scans in marijuana users show decreased circulation to the temporal lobes of the brain, accompanied by impaired cognition.  Marijuana has a dumbing-down effect, and smokers seem self-involved and self-important.  They talk a lot, say very little, and ask no questions--the definition of boring.
     5.  It causes dry mouth, which leads to tooth decay and loss of teeth.  Many drugs, including marijuana, slow saliva production, cause bad breath, and increase the risk for cavities.  Combined with the who-cares mentality that typifies regular marijuana users, dental hygiene suffers.
     6.  It leads to dependency.   Medical studies of marijuana have demonstrated long-term changes in brain function that are typical of addicts.  Marijuana dependency is especially prevalent in those who start smoking in their teens:  the earlier, the worse.   The DSM-IV definition of substance abuse applies to "people who use a substance repeatedly and to their personal detriment."  It has been shown that marijuana users have a diminished ability to plan ahead or control self-defeating behaviors, and therefore fit the psychiatric definition of addicts.  The risk of true marijuana addiction (9%) is lower than with tobacco (38%) or heroin (23%), but it's not zero.  When marijuana smokers try to quit, they realize how habituated to the chemical they really are.  For most, even when they say, "I can quit any time," it ends up being very difficult to do.
     7.  It's can be a substitute for psychological counseling and self-understanding.  Sometimes marijuana smokers justify using the drug as a path to self-knowledge.  Others aver that they're self-treating for anxiety.  In fact, marijuana can cause anxiety, panic, paranoia, depression, and delusions.  Those who use it to treat anxiety find that when they reduce their marijuana use even a little, they experience anxiety that is worse than it ever was in that distant past prior to ever smoking.  Anxiety, depression, panic and paranoia are calls from the deeper sectors of one's personality to come to terms with aspects of the self that have been repressed.  Self-knowledge is a good thing, but it is best achieved in psychotherapy with an expert, or in empathic counseling with anyone who has suffered and come through that suffering with greater consciousness.
     8.  It causes lung disease, cancer and infections.  Like tobacco and other particulate substances, marijuana causes emphysema.  But marijuana has higher concentrations than tobacco of the polycyclic aromatic hydrocarbons that cause cancer.  Marijuana smoke increases the enzymes in alveolar tissue that convert these polycarbons into carcinogens, which in turn give rise to cellular chromosomal changes that trigger cancer.  Marijuana smokers have higher rates of lung, mouth, throat and prostate cancer than nonsmokers.  There is increased mortality in AIDS patients who smoke marijuana because of the toxicity of marijuana to the immune system.  Marijuana smokers in general have five times the rate of bronchitis as nonsmokers, and lower performance on lung capacity tests.  In mice who were infected with herpes, THC caused pneumonia and death.
     9.  It worsens heart disease.  The right heart pumps blood to the lungs for oxygenation, then draws it back to the left heart where it is pumped through the aorta to the general circulation.  Any substance that damages the lungs can worsen heart disease.  Marijuana is an irritant to lung alveoli--smokers have twice the number of macrophages in their airways as nonsmokers, and four times as many if they use both tobacco and marijuana.  Macrophages are cells that are commissioned by an overwhelmed immune system to "clean up" toxins and dead tissue, and therefore signify a crisis in whatever part of the body they populate.  Marijuana increases heart rate and inhibits the natural mechanism that helps us regulate blood pressure when we change position, which may account for the dizzying effect some people experience when they smoke it.
    10.  It affects production of reproductive hormones.  Therefore, it reduces fertility.  In addition, when women smoke marijuana during pregnancy, they have lower birthweight babies and poorer pregnancy outcomes.
    11.  It impairs driving.  Many of my marijuana-smoking patients claimed that, unlike alcohol, marijuana was safe to use when driving.  But medical studies don't substantiate this.  Marijuana has an affect on the temporal lobes that reduces sensitivity to sounds and affects driving by altering the user's ability to respond to environmental cues.  It slows attention and reduces muscular coordination, qualities necessary for safe driving.  In flight simulation tests pilots who smoked marijuana demonstrated reduced flying performance, even when they claimed certainty that their performance wouldn't be affected, indicating an unawareness in smokers of how the drug alters their sensibilities.  Would you want the commercial pilot on your next flight to smoke a joint or two before getting in the cockpit?
     12.  It increases appetite and decreases the desire to move.  In a nation that is fat and indolent, by comparison to others, any substance that makes us eat more and exercise less has to be bad.
     13.  It is a "reinforcer."  Reinforcers are drugs that make us want to use them more.  Xanax (alprazolam) is the most addictive prescription medicine in the world, because it works so well.  It's a reinforcer, and is therefore very dangerous.  The better a drug makes someone feel, the more the person wants to use it.  It may be the effect of increasing dopamine in the brain that makes marijuana act as a reinforcer, but the dependency marijuana users experience (and deny) is probably a direct result of its reinforcing effect.
     14.  It is commonly used by people who also smoke cigarettes and use alcohol.  Seventy percent of marijuana users also smoke tobacco.  A significant proportion have more than one or two alcoholic drinks a day.  The combined toxicities of these substances is more than additive, making it far more likely that marijuana users will suffer health problems than nonusers.
     15.  It causes lipomas, or fatty tumors.  The chemicals in marijuana are lipophilic, a term that means they have an affinity for fat and settle in fatty tissue.  I have removed many large, sometimes painful lipomas from patients, and although I didn't keep track of the numbers, it seemed to my staff and me that a very high proportion were in marijuana users.  The fatty growths may be a way for the human body to consolidate toxins that are otherwise difficult to excrete.  Lipomas are lumps like encapsulated globs of yellow chicken fat under the skin.  They grow, over time, and can be unsightly and uncomfortable, requiring surgical excision.
     If you'd like to download a free PDF book on all the research on marijuana, check out the following.

Monday, December 30, 2013

The Government's Response: Notes, Part 4, "Non-FDA-Approved Drugs"

     One of the government's allegations against me is that I billed Medicare for non-FDA-approved medications and devices.
     The  medications in question, used in both of my clinics were FDA-approved:  Reclast, Boniva, Synvisc and Orthovisc.  The devices were Paraguard and Mirena IUDs, made and packaged by the original manufacturers, also FDA-approved.
     Reclast and Boniva are IV medications for osteoporosis, and Synvisc and Orthovisc are intra-articular injections for degenerative knee arthritis.  My clinics had excellent nursing staff who were experts at IV placement and never, in ten years, had complications from IV placement--no infections, no phlebitis, no bleeding problems.  I did the joint injections (with a few exceptions, after I taught a physician assistant to do them), for which patients were grateful, because long-acting corticosteroid injections have been shown, over the past forty years, to be safe and effective at treating arthritic joint pain and stiffness, and Synvisc and Orthovisc (made from rooster-combs!) replace synovial fluid, lost through aging, in the knees.
     These four medicines cost more to purchase than the reimbursement from Medicare, the prime insurance coverage for most patients who need osteoporosis and arthritis treatments, covers.  We couldn't even break even on the cost when we compared prices from our usual suppliers:  Henry Schein and Merck.   The IUDs cost more to purchase than any insurance company would pay for insertion of an IUD--the same insurance companies that paid for pregnancy and delivery of infants born to mothers who didn't want a child or were taking pregnancy-compromising medicine or illicit drugs.
     I asked my nursing staff to compare prices at as many different pharmaceutical suppliers as seemed reasonable and to find the best price for these products;  then, I could make a decision about whether we could afford to lose money by offering them.  Maybe we'd find a supplier with a price that wouldn't put us in the red every time we treated a patient.
     Northwest Pharmacy had a price slightly below the Medicare reimbursement for those four medicines.  The nursing staff filled out our standard purchase order form to get my approval to order them so we could treat the many patients who requested these medicines for osteoporosis and arthritis, or who wanted IUDs.  Northwest Pharmacy turned out to be a Canadian pharmacy:  the FBI agents who raided my clinic told me and said they were illegal.
     "Did you know these IUDs were made in Thailand?" Special Agent Robert Murphy accused.
     "Everything we use in the clinic is made somewhere outside the United States," I said.  This exam table is probably from Asia."  I lifted an instrument out of the sink.  "This alligator forceps came fem Germany.  That watch you're wearing was probably made in China.  So were your shoes, I'll bet."
      The products were made by U.S.-owned companies (whose factories are outside America);  they were FDA-approved, bought legitimately by this well-established Canadian (it turns out) pharmacy;  sold in vast numbers to American physicians and clinics;  unopened, unaltered, and stamped as approved by U.S. Customs and Border Protection patrols;  then, strangely, become "illegal."  It makes no sense, but that's the law, and "I knew or should have known," therefore could be convicted of a felony for "importing" and using them.
     The six medicines and products under question weren't made in someone's garage or sold out the trunk of an old Cadillac in a back
     The United States government has decided that it won't prosecute people for purchasing medicines from Canada, India, Mexico or anywhere, if they're "for personal use."  It won't prosecute citizens, physicians or clinics for small quantities.  The government accepts, therefore, that the products are safe.  But an FDA-approved medicine that crosses the American border and then returns, remains "illegal," nonetheless, and the government reserves the right to convict a doctor of a felony-offense for using it.
     If you stroll through any American drugstore you'll see that most over-the-counter drugs are made in other countries:  the Prilosec package, for instance, says, "Made in India."
     The retail price of Reclast varies greatly.  A 5 mg vial is the once-yearly treatment for osteoporosis, is administered IV and takes ten or fifteen.  The best price we could procure, before finding Northwest Pharmacy, was close to $1,400 for 5 mg.  Medicare "allowed" $224.75 per mg, or $1,123.75 per 5 mg dose, but only paid 80% of that, or $899.00--the patient's secondary insurance would have to pay the other 20%.  (If the secondary insurance is Medicaid, the doctor has to write off the 20%.)  Therefore, we would lose $276.25 per dose if we administered Reclast to Medicare/secondary insurance patients, and $501.00 per dose for Medicare/Medicaid patients.  Not good for business--but I knew that Reclast was the optimal treatment for many of my osteoporosis patients, and I wanted them to have it.
     Northwest Pharmacy was a life-saver for all of us, since its price of $1,135.18 for 5 mg allowed us to administer Reclast without losing money.  We could bill for the IV-administration (a separate, nominal fee), and make a profit of $11.43 per dose.
     The same set of circumstances conditioned my clinic use of Boniva, Synvisc, Orthovisc, Paraguard and Mirena.  Boniva cost the clinic $481.29 per dose;  Medicare reimbursement was $363.94 plus a secondary insurance or self-pay amount of $90.98 if a patient didn't have Medicaid), causing us to lose $26.37 per dose for Medicare/secondary patients, and $117.35 per dose for Medicare/Medicaid patients.  No wonder so few doctors administer these invaluable medications in their clinics.
     Even if I had registered that these supplies had been routed through Canada, it wouldn't have seemed significant, given the multinational (outsourced) production of all American pharmaceuticals.  (Don't we have a trade-agreement with Canada?)  If it's a felony to purchase once-FDA-approved medicines (which, crossing the border into Canada, mysteriously become non-FDA-approved)-- medicines that allow doctors to do their job of treating and curing conditions that cause disability, falls and death, or incur joint pain, or prevent unwanted pregnancies--if it's a felony for a doctor to purchase medicines at a price below insurance reimbursement, in order to stay in business, then there's something wrong with our justice system.
     But we already know there's something wrong with the justice system, don't we?

     Addendum:  Here are a few items from an internet search on Reclast, for your perusal.  Look at the charges for Reclast, by other physicians.  Are doctors confused about billing issues, and reasonable charges, or what?  

Ruthie Says:

I had an infusion of Reclast at an infusion center in June 2010 and my Medicare HMO received a bill for over $7000 for which they paid $5800 claiming that was the average price that Medicare allows. My local pharmacy as well as an online quote was $1000 at the time. Why is there such a vast difference between a hospital charge and the retail market price? 

cost of Reclast Infusion with Insurance

I just got my bill from my recent reclast infusion.
My insurance company was billed $15663.75 for this procedure.
Thank goodness, I only have to pay a $50 deductable
Has anyone else had this experience?
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9 replies. Join the discussion

From the AgingWell website:http://www.agingwellmag.com/archive/110310p6.shtml

"Cost could be seen as an obstacle for patients considering Prolia as a treatment option. While generic Fosamax costs roughly $100 to $200 per year and brand-name bisphosphonates slightly less than $1,000 per year, Prolia will cost about $1,650 per year plus the cost associated with an office visit. Prolia is also more expensive than Reclast, which costs $1,100 for a yearly dose. "

Given the large attention given to a few rare thigh fractures associated with Reclast, and the fact that infusion centers and the doctors who prescribe the drug are prime targets for med/mal lawsuits, I wonder how much of the billing is CYA insurance? But that cost is outrageous. Our infusion center does charge about $250 over our cost for the drug for having registered nurses prepare the drug for injection using sterile technique, starting the IV, the cost of the IV tubing and sterile saline, syringes, needles, and bio-hazard disposal costs for the used IV and needles, alcohol, bandages etc, and monitoring vital signs pre-, during, and post infusion to look for signs of actue phase reaction, and make follow-up phone calls on all patients the next several days and documentation of all of this as required by federal and state regulations. But adding an extra $17,000? I would ask that you call the billing department and demand a justification for why such a high overhead that they never get from people with health insurance plans that reduce the cost.
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Sunday, December 29, 2013

The Government's Response: Notes, Part 3, "Inadequate Documentation"

     The allegation of inadequate documentation is a method to which the government has stooped to turn a flagging case into one that appears to have substance.  Not that it can't work for them:  we have the example of Dr. Natale, a surgeon sent to prison last year for ten months for documentation errors (http://www.aapsonline.org/index.php/site/article/surgeon_reports_to_prison_government_sends_message_states_aaps/).
     (Shouldn't the government spend its resources going after sham "clinics"--the ones with no patients, no charts, no staff, and no history of treating anyone, the ones that bill and collect from Medicare by using lists of Medicare numbers, the ones that shut down and remove their "earnings" to foreign bank accounts the  moment detection is imminent--instead of working docs who aren't criminals?)
     The feds are after me, now.  So let me address how fraught with problems, and how amenable to attack, doctors are because the government has among its weapons the term "inadequate documentation."
     Medicare stopped paying for patient care in June 2011, immediately after the FBI raided Colasante Clinic.  The clinic was placed on a "100% review," which meant Medicare would reject all my claims for payment until its reviewers look at copies of the patients'  medical charts to confirm that medical services for which I billed had been justified.  The FBI raid must have triggered this action, but the federal prosecutor steadfastly denied, to my attorneys, a role in it.  He seemed to consider it a coincidence.
     My clinic was required, thereafter:  1) to send electronic claims for the work we'd done;  2) await Medicare's formal, written refusal to pay without hard copies of patient records;  3) copy the chart notes for patients who had been treated;  4) send records by certified mail, and accept Medicare's decision as to the legitimacy of the claims.  It so happened, when a response was not forthcoming,  that Medicare's representatives would tell us they "hadn't received the records."  We ended up sending records for the same patients and same services three or more times.  Moreover, the FBI had taken all the charts, so we didn't have them to copy as proof of services prior to June 2011.  This allowed Medicare, in turn, to demand refunds for payments they had already made and were now demanding proof, which was impossible to retrieve.  The clinic was in a chaos of paper, and billing staff outnumbered providers two to one.  The cost of copying and sending records wouldn't even have equaled that of payment for many claims, but the clinic was operating at a loss and had to get paid to survive.
     For more than a year Medicare responded to all the records we sent with form letters denying payment on grounds of "inadequate documentation."  Patients who presented with with chest pain and underwent an EKG were, it seemed inadequately documented.  What was "inadequate," I wanted to know?  There would be a written chart note describing the patient's current complaint and a history of coronary disease;  there was a copy of the EKG with a handwritten interpretation and my signature.  But payment was denied every time, for every service.  On what grounds could Medicare deny payment for hundreds of flu shots when the records we mailed included a signed consent form, an office note, a record of the type and dose of flu serum, the lot number, expiration date, site of administration ("left deltoid, IM"), signature of the nurse who administered it, signature of the provider who authorized it--what else did Medicare's reviewers need as proof that a flu shot had been requested and given?
     You get the picture.  If anyone was "scheming," it was Medicare, and it was the government.  My clinic sent records, tons of them, but we never received payments.  Instead, we were sent denial after denial.   I'll need a lawyer to collect on the $1 million it owes, and I have talked to several.
     Medicare's hugger-mugger bureaucracy allows it to reject any claims it chooses.  The system is impervious to challenge, despite the existence of a formal process for challenging payment decisions.  We went through all the established routes, requesting "reviews" of decisions and attempting to talk with real people, even high-level administrators.  I sent a series of certified letters asking Medicare to send representatives to my clinic to "help us" understand what more it needed as justification for payment.  After several months without a reply, I got a real letter from a real official, who told me Medicare would never send anyone to my clinic to help, and who confirmed that the rejections of payments would remain.  I was not to be paid.  Medicare had decided, I suppose, on the basis of the FBI raid, that I was a criminal.  No due process, no trial, no conviction.  If that's not autocratic, and undemocratic, what is?  My patients suffered the most.  They wanted to pay cash for my services, but Medicare has rules in place that disallow patients from paying anything out of pocket to Medicare providers, and make it a crime for providers to accept payment.
      Medicare's guidelines about documentation are elementary, when it comes to tests.  For instance, to justify an abdominal ultrasound a doctor has to show in the medical record that a patient has any one of dozens of symptoms or conditions.  Sometimes hundreds (or even thousands, in the case of generic lab tests) of possible symptoms or diagnoses will serve as "adequate" rationale for performing a test--and making a note of the symptom in the chart serves as "adequate documentation."  Justification for an EKG could be "chest pain," "heart fluttering," "heartburn," "arm pain," "dizziness," "passing out," or even "abdominal pain."  The doctor's judgment is a key factor in determining the need for an EKG, or any test.  Every test done in my clinics had a justification, in writing, in the medical record.  Did the government make up this accusation?
      Documenting office visits is more complicated than doing so for tests.  Medicare has established two sets of toilsome rules for ascertaining the "level" of an office visit, and hence the payment due.  The first set was introduced in 1993, and the second in 1999.  Providers are permitted to base their charges on either set;  I found the 1993 rules more sensible.
     The 1993 documentation rules require that a provider count bullet points in three separate categories, based on the office note, and bill for the visit based on the sum in each category--payment is based on the lowest of the three sums.
     Here is the breakdown of the chart note, as auditors see it.  Category 1:  chief complaint;  review of systems;  past, medical and social history;  recent medical visits elsewhere;  a rendition of the doctor-patient discussion prior to undergoing an exam;  Category 2:  physical exam;  lab tests;  other diagnostic tests, both in and outside the clinic;  consultative reports.  Category 3:  assessment and plan, which mandates a written discussion of the provider's thought processes and decision-making about the patient's constellation of symptoms, test results and physical findings.   The 1993 analysis of the chart note is based on the SOAP-note formula doctors learn in medical school and therefore is intuitive, although counting bullet-points is not.  There are ten to fourteen bullet points possible for each of the first two categories, but the third one is subject to a judgment call, therefore vulnerable to charges of "inadequate documentation."
     There are forty-seven different office visit codes that may be used to represent most family practice visits:  five new patient visits, based on complexity of visit;  five established patient visits, based on complexity;  six new patient preventive visits, based on age and complexity;  six established patient preventive visits, based on age and complexity;  five new patient house call visits, based on complexity of visit;  five established patient house call visits, based on complexity;  five critical care visits, based on time spent stabilizing very ill patients;  three additional-time codes;  three office-visit without patient present codes; three an after-hours add-on code;  a weekend and holiday add-on code;  and an emergency visit add-on code.  Examples of codes for billing are:  99211, 99212, 99213, 99214, 99215, 99201, 99202, 99203, 99204, 99205, 99391, 99392, 99393, 99394, 99395…etc.  Doctors must know these codes if they hope to represent their office visits properly.  If more than one office visit service is provided on the same day (e.g., a preventive visit done on the same day as a sick visit), the proper "modifiers" have to be affixed to the codes, or the claims will be spit out and left unpaid by the insurance companies.  There are several dozen modifiers.  If nursing home visits are performed, an entirely different set of codes is used to bill for them.
     In addition to these office visit codes there are innumerable codes for "separately identifiable" (Medicare's language) services:  for rectal exams, prostate exams, stool guaiac testing, breast and pelvic exams, Pap smear collection, smoking cessation counseling, self-care teaching, gait training, and more.  One might appreciate these services being included in the physical exam codes, but Medicare has evolved endless subcategories of complexity not unlike the government's IRS formulas, and like most of the government's creations, its Medicare protocols are a regulatory nightmare.
     The "bullet point" system for determining which level office visit to choose is roughly as follows.  If a visit with an established patient included ten items from category one (complaint, review of systems), and eight items from category two (physical exam), and involved a moderate level of complexity in category three, it would be correct to code 99214.  If the same office visit included fewer bullet points in any of the first two categories, one would have to "downcode" to the lowest category--e.g., if only seven bullet items were addressed in category one, even though a complete physical exam with twelve items was done and a high complexity assessment/plan was documented, the billing code must be reduced to  99213.  There is a caveat, however, introduced after family practitioners insisted that their time with the patient should be considered and included as a factor in payment.  It states that if more than 50% of the office visit is spent talking with the patient about medical concerns (not separately coded, like smoking), then the provider is permitted to "upcode" to a higher level charge based on that time.  The documentation requirement is that a notation be made in the chart that the charge is based on time.  It might corroborate the charge to include an estimate of the time spent and topics under discussion at the visit, but these aren't mandatory.
     My providers and I followed these guidelines closely.  We developed a documentation sheet that would correlate with the 1993 Medicare rules so that reviewers could see at a glance how much work was performed in each of the audited categories.  We had a checklist to make it easier for providers to document what they did, without taking their eyes and attention off patients--who, after all, should be the main focus of attention.
     But are they?  Doctors in private practice spend so much time trying to unravel the humbuggery of documentation and coding guidelines that they get distracted from the patient's presence and problems.  The guidelines turn something natural--a doctor/patient encounter--into an artificial construct, which is open to measurement and attack by outsiders, including Medicare, for the purpose of withholding payment.  Documentation has become an obstacle to good patient care, and a staggering and fear-ridden enterprise for physicians.
     Nevertheless, I did understand the guidelines and I followed them--and trained my staff to do the same. Perhaps I understood the guidelines too well.  Maybe the guidelines were never intended to be used in the exacting ways I used them.  I was a little obsessive about making sure we did things right.  I stayed at the clinic past midnight many evenings, counting bullet points, making sure the providers' charges were accurate, correcting codes, and suggesting ways for them to take better care of patients at future visits.  I was their supervisor, and had an ardent sense of responsibility for every patient's well-being.  If I hadn't seen a particular patient and a provider had missed a possible diagnosis, or should have followed a certain algorithm for managing a symptom, I gave instructions for their next patient visit, or had the patient called back so I could I outline a plan of treatment.
     The government caused Medicare to stop paying me, and now may be using this refusal to pay (for services that were necessary, and rendered) as a way of accusing me of inadequate documentation.   But this is a circular allegation, and one that won't hold up once my charts are available for scrutiny.  It didn't hold up, in fact, when an outside consultant from New York did a statistically generated analysis of my office records.  Perhaps the government's prosecutors think they can bank on an accusation of "inadequate documentation" because Medicare's guidelines are so steep and craggy that physicians all across the country can be made to fall into their dizzying, livelihood-threatening, payment-rejecting chasms, whenever a whistleblower or federal prosecutor decides to target them.

Saturday, December 28, 2013

Lost in the Woods

     I wasn't dressed for a hike and neither was my son, Carmine:  shorts, t-shirt, flimsy shoes.  But he wanted to go for a walk.
     Carmine's neurological apparatus is so aberrant, afflicted by autism, that he hasn't ever been able to communicate.  He gives the impression of understanding, because he repeats what he hears, a condition called "echolalia."  Over the past six months I've developed a rudimentary system for him to convey preferences.  I write a list of options on a legal pad, he copies the list, then circles one.  Yesterday I wrote:  Cook Dinner, Take a Nap, Go to a Movie, Take a Walk, Paint, Pull Weeds in the Garden, and Vacuum.  "What do you want to do?" I asked.  Without hesitation he circled Take a Walk.
     We live on 424 acres surrounded by Plum Creek's piney woods, which is leased by local hunters who belong to the Star Lake Hunt Club.  From November through March there are pre-dawn raucous disturbances of gunshots and maniacal dogs in packs, tearing through the acreage.  (Deer make no sound:  that's their defense.)
     Sometimes I chase the dogs down in my little Toyota in an effort to run them off the property and protect our wildlife habitat, which is part of the Florida Stewardship Program.  We haven't ventured off the beaten track much, on our walks, but I've begun to resent the the hunt-club's gun-toting intimidation and its encroachment onto this land.  It's my woods, too.  
     Carmine and I were hiking where trucks loaded with freshly killed deer usually trundle, when I had the idea of veering onto the smaller footpaths blazed by hunters, and even smaller ones, probably trodden by deer.  Then, like pioneers, we went into the depths of the forest, where there are no paths at all.
     Before long, we were lost.  We crawled through dense pawpaws and wax myrtles and got crisscrossed with scratches from rampant blackberry brambles.  Dusk had settled in the woods and it was getting darker by the minute.
     "Where are we?"  I asked.
     "Where are we?" Carmine echoed.
     "We're lost," I said.
     "We're lost," Carmine answered.
     He was following close behind as I searched the sky for linear clearings in the treetops, thinking that open sky would signify an unarbored area below, therefore a path pointing the way home.  But no path emerged.  We found ourselves traversing the same places over and over, making wide, futile circles.
     "Let's follow the sky where the sunset was," I said.
     "Sunset," Carmine said, woodenly.
     "That's west, which will take us to the highway sooner or later."
     My plan to use the westerly brightness of the fallen sun was promising until we found ourselves in a collusion of bony cypress knees--first a few, then a huge assemblage of them rising like goblins from the murky waters of old Florida swamp.  I used a branch to measure the water:  four feet.  Too deep to cross.
     "Whoa, the water table's really coming up," I said, like a scientist.
     "Really coming up," Carmine replied.  His brow was furrowed, and I realized that getting us lost at night in the woods was not an example of good caregiving.
     I wasn't perturbed by worry, however.  The instrument of fear that has evolved in the amygdala to protect us from danger wasn't functioning, I noted, in me.  I tested it by conjuring up potential hazards:   bears, coyotes, ticks, snakes, rain, cold.  A twisted ankle, a broken leg.  (I had thrown out my cell phone last year, and therefore couldn't call for rescue.)   We might feel hunger--but not thirst.  I figured we could drink that swamp water, since it percolated up from a crystalline aquifer.
     "So what?" I answered to every threat.  Not one felt serious.
     I remembered the news headlines twenty years ago, when I first moved to Florida with my four boys.  An autistic girl had been alone and lost in the woods for three days--cold, hungry, mute, unclothed and indifferent--when she was discovered.  She ended up in foster care, and ten years later became my patient.  I loved being her doctor because she was so gentle, uncomplicated by dark intentions.  Ever since her lonely meanderings in the woods, I had regarded her as a hero.  Like Carmine, her mind was impenetrable, but not empty.
     If I had been lost in the woods five or ten years ago, I would have been frightened.
     But frightened of what?  The fear would have been generic and global, gripping me like a terrible nightmare.  Fear surfaces from unknown places in the psyche, and transforms the outer world--nature, night, venomous and carnivorous creatures, the woods, the swamp--into dangerous terrain.  It's the effect of the dark underpinnings of consciousness.  But now I wasn't feeling any of that fear, not in these woods.  Nature seemed benign, in comparison to human despicableness.  The unconscious demons in my depths had risen from their shadows in the past three years, and taken shape in the physical reality of my prosecutors.
     The government's attack on me has reset my fear-threshold.  The moment those twin behemoths of government and bureaucracy entered the scene, the little titmice I used to dread--night sounds, dark water, alligators, forty-degree weather--became mere trivia.
     "Each one of us will be faced with genuine evil at some time in our lives," said a friend to me this week.  She and her husband have had to face their own demons in the form of institutionalized villainy at the University of Florida, this year.  "How we confront evil calls into the foreground the deepest elements of our characters," she added, to give me courage.
     To what extent is the government, or any unfeeling giant of civilization, a force of evil?  And is evil itself and our willingness to confront it the instrument of transcendence?  Or is our fear, and the capacity to negotiate it, which lead us on the path to higher consciousness?
     In the woods I was reckoning the likelihood that Carmine and I, however discomfited, might be in real danger.  The risk was small.  I saw grassy places where we could lie down and sleep without getting wet.  I had noted that the swamp water was alive and trickling, and therefore drinkable.  I figured we might huddle under a mass of pine straw and share warmth until morning.  I even gathered wads of Spanish moss to use as pillows.
     And as we went on hiking, slapped by branches and tangled in the dense vegetation of an understory that is never thwarted by deep freezes, I whispered, "Help."  I didn't want Carmine to hear and, perhaps, be assailed by his own quiet demons.
     "Help," I said to myself.
     And all at once, there in the distance appeared the wide path that had been our starting-point.  Overhead, a pearly pre-moon sky, unfettered by the boughs of pines or the fronds of tall cabbage palms, confirmed that there was a clear truck-path below, and signaled a return to our old life.
     "Whew," I said.  "We made it."
     "We made it," answered Carmine.  It was 10 pm.
     "We need a compass, next time."
     "Compass, next time."
     "That was lucky."
     Was it luck?  I wondered, as we trudged home with wet shoes and the seeds from creeping beggar weed all over our clothes.  I guess it was.

Friday, December 27, 2013

The Government's Response: Notes, Part 2, "Unnecessary Treatment"

     The government says I provided medical services that "weren't reasonable or necessary."  It gives some examples in its Complaint, but it cites patients using their initials--and five or more years later, I don't recognize them without their charts.  Besides, the services it mentions were so basic to my medical practice--EKGs, ultrasounds, x-rays, labs, smoking cessation counseling--that it would be like telling an ophthalmologist a cataract surgery done 6 years ago on patient "M.S." "wasn't necessary."
     The tests available in my clinics were essential for making accurate diagnoses--they weren't arcane or extravagant tools.   As for tobacco counseling, almost half our patients were smokers or ex-smokers with lung or heart disease directly related to tobacco use, so they would have received tobacco counseling (not a covered service until March 2005, and therefore not billed until after that date).
     Patients received other kinds of counseling as well, for cholesterol, weight loss, and nutrition.  Medicare notified doctors that it would start covering these services before the smoking codes were approved.  My prosecutor seems to think this was "unnecessary," too.
     The government capitalizes on particularly bad wording in the False Claims Act (FCA) to make its argument:   it's a violation of the FCA to provide unnecessary treatment.
     What's unnecessary?  How does the prosecutor know?  Is he guessing?
     There have been many government cases against doctors for "unnecessary treatment"--it's a popular charge.  The unnecessary treatment cases usually get settled out of court, and the Department of Justice (DOJ) publicizes them widely, because they represent big coups.  They're too expensive to defend, and the cards are stacked against doctors.  I know, because dozens of lawyers have told me that's why it's hard to defend my case.  The FCA is a nasty piece of legislation when it comes to medicine.
     I've provided links for two DOJ cases involving a cardiology procedure called stent placement.  In both, the cardiologists were accused of doing "unnecessary" stent placements.  But almost all cardiologists do stent placements.  So which ones are "necessary"?  The answer is:  almost none.  I don't know the details of these two cases and I'm willing to acknowledge that the doctors and hospitals may have "knowingly and recklessly" performed and billed for "unnecessary services."  But I do know that, based on current data about stent placements (which is that 95% of them aren't necessary), the feds could just as well be prosecuting all of this country's cardiologists.
     Here are the cases:
        Michigan cardiologist settlement
        Tennessee cardiologist settlement
     Both are qui tam cases, which pay out not less than 15% and not more than 25% of the settlement to the whistleblower.  Because the FCA statutes were stacked against these cardiologists, as they're stacked against me, the docs didn't have a chance.  Of course the docs settled.
     Here's a question for the government:  when is a coronary stent "necessary"?  How does it know?  How does it decide which cardiologists to prosecute?
     In 2007 the COURAGE (Clinical Outcomes Utilizing Revascularization and Aggressive Drug Evaluation) trial results came as a huge surprise to everyone.  They said that stents were no better than no stents when it comes to treating coronary artery disease, in all but a handful of heart patients. What COURAGE demonstrated was that stents were "unnecessary," and medical management worked better for preventing future heart attacks.
     What's "medical management"?  It's what I did every day in my clinics;  it's what family doctors do all the time;  it's getting patients to exercise, lower their cholesterol, take four medicines (beta- blockers, ACE-inhibitors, statins and aspirin), quit smoking and keep their weight down.  It takes more time than stents, but it's better, and a lot cheaper.
     Millions of stents are placed in patients' coronary arteries every year, in spite of the 2007 data, which has been corroborated by other studies.  Drug-eleuting stent procedures cost $30,000 to $60,000.  Most cardiologists ignored the COURAGE results when they came out, and at least two-thirds of the stents placed today are probably "unnecessary."  See for yourself in two overviews of this problem--the raw data and studies are available if you want them.

NY Times: stents overused
Bloomberg report: stents lead to death

     The government could, if it wished, prosecute nearly every cardiologist in the country-- because there aren't many who don't do stents.
     Here's why cardiologists do stents:  1) patients still subscribe to the erroneous theory that coronary disease is like having blocked pipes, and stents will "open" them--so they want  stents;  2)  a stent  procedure is quicker and pays a lot more than the office visits necessary for explaining COURAGE to patients and getting them to change bad habits that contribute to heart disease;  3) in the middle of a cardiac catheterization, it's easier to justify doing something, including an unnecessary stent, than nothing.
     Why aren't government prosecutors charging every cardiologist with violations of the FCA?  Why aren't they raiding cardiology clinics, freezing money in their bank accounts, and prosecuting them all?
     The truth is, they could.  They have COURAGE to back them up.  But the government doesn't know whether procedures are "necessary" or not.  It doesn't attack physicians unless there's evidence of gross negligence--or a whisteblower to pull its chain, a whistleblower who knows how trigger-happy prosecutors are, and who is banking on a big payoff.
     If the government knows that the EKGs, labs, x-rays, ultrasounds and counseling I did in my clinics were "unnecessary" I'd like to know how.  I did many of those EKGs, echocardiograms (a heart ultrasound), stress tests, x-rays and tobacco counseling as a direct response to the 2007 COURAGE trial results--which I read when the study came out.  I did not send patients to cardiologists if the results of my own evaluations proved there was no need for catheterization or stent placement.  I did, however,  do echocardiograms, EKGs, stress tests, lab work, and x-rays.  And I did spend time getting patients to exercise, alter their diets, lose weight, change their lifestyles, take appropriate medicines, quit smoking, and stay quit.
     It is estimated that tobacco-related illness has cost the American government $500 billion in the past ten years.  If the feds want to take back money for Medicare, they should be encouraging more doctors to provide smoking cessation counseling, not apprehending them for using a code Medicare introduced to cover the cost of helping patients with tobacco-related problems.
     Instead of calculating how much money it spent on "unnecessary" EKGs, ultrasounds, x-rays, labs and tobacco counseling, why doesn't the government add up the sums it has saved on account of my patients not getting cardiac catheterizations and stents?  Why doesn't the government figure out how few emergency room visits my patients had, or calculate the savings on bronchitis, pneumonia and emphysema treatments for the ones who quit smoking?  Why should Medicare be happy to pay for cardiology visits up to $250 each, or E.R. evaluations for angina at $10,000, or cardiac catheterizations at $2,000, but questions a $23 EKG, or $20 for tobacco counseling?
     Instead of trumping up nebulous charges against me, then scurrying to find evidence to support them, why doesn't the government take a few steps back and really sort out how to reduce Medicare spending (clue:  it's not by indicting well-meaning doctors)?  Why doesn't it stop terrorizing docs who are doing their jobs?  We doctors are living a nightmare, between malpractice lawyers--who threaten to sue for "failing to diagnose" and "failing to treat"--and the feds, who hawk, "Unnecessary treatment, fraud!"  Tell me, what are we supposed to do?
    At the very least, it's about time we rewrote the False Claims Act so it doesn't gives our assistant U.S. attorneys unbounded license to attack any doctor it wants, for doing "unnecessary treatments."

Thursday, December 26, 2013

Magic on Christmas Day

     Farm chores don't take holidays.
     In the chicken coop on Christmas day, therefore, Carmine and I raked the dirt floor and scrubbed the waterers.  There were no eggs in the nesting cubicles.  But three hens were sitting in their boxes fluttering their wings like prima donnas with fans in anticipation of a symphony concert.
     We had just filled the food bins with organic layer mix when one of the Auracanas stood up, made a trill to get our attention, and dropped a green egg into the hay.
     Hens are private about egg-laying.  Last year I was determined to see an egg being laid, so I stood quietly in the chicken coop for an hour or two at a time, one day after another.  Most of the time the hens blinked resolutely at me, then got off their nests and went about other business, pecking at new blades of grass or waddling over the lumpy compost pile.  They wanted to be left alone when delivering their bounty.  I saw the process of egg-laying only once.
     Carmine grabbed the egg still hot and sticky from between the hen's feet.
     Then a Brahma stood up in an adjacent nest, squawked, and, ogling us, produced a pink egg--just like that.
     Had they choreographed this green and pink egg performance?
     I imagined them prattling to one another from after dark on Christmas Eve.
     "Now, wait until they come into the henhouse tomorrow, however late."
     "I can't wait, when an egg is rolling down the chute!"
     "Yes, you can.  Grow up, punk!  This is important."
     "And just as those two are filling the feed bin, Greenie, call out  to them and drop the green egg."
     "Yeah, don't make it one of those pale blue ones this time."
     "And make sure the 'plunk' is audible, or they'll miss it."
     "Yeah, all right, all right, enough now."
     "She gets the message.:
     "Then, Pinkie, wait exactly sixty seconds, position yourself, and do the same thing.  Make it a super pink egg."
     "And choose a clean nest--that one, over there."
     "Christmas is not a time for messy eggs."
     "And if they're not looking at you, sing a cluck-song right before the gift."
     "It's Christmas, you know."
     "That sort of thing is important to them."
     "Gifts, decorations, green, red, magic."
     "They don't seem to realize that every egg is magic."
     "We're doing this to remind them.  Humans are kind of dense."
     "I know what she'll say, cuz she's spooky like that."
     "'This can't be a coincidence.'"
     "Yeah, shell say that.
     "And:  'This must have special meaning.'"
     "She'll say that, too."
     "So what?  She feeds us every day.  Can't you be nice for a change?"
     "Leave her alone.  She's okay.  I kind of like her."
     "Now, get some sleep.  And don't forget your parts."
     That morning, after the production, I saw the pink and green eggs in Carmine's hand and was awed.
     "Did you chickens plan this thing?"
     "Cluck.  Cluck."
     "It can't be a coincidence," I said to Carmine, regarding the eggs like the Queen's jewels.
     The hens jumped down from their boxes and headed into the sunlight.
     They were finished.  How had they managed to time it like this?
     "It must have meaning," I said.
     I scraped some oat groats left over from breakfast into their bowls.
     "You girls are really special," I said.
     They gathered round, all twenty-two of my glossy hens, and it seemed to me they bowed to me like leading ladies, before digging in.

Wednesday, December 25, 2013

Fantasy Letter for Christmas

                                                                           December 25, 2013
Dear Dr. Colasante:
     We are writing to express our deep regret at having disturbed your life and profession these past three years in what turns out to have been a reckless and misguided attempt to catch a criminal and replenish the government's waning coffers.
     You are not a criminal.  In fact, you represent the doctor of the future.  We need more such physicians who take action with patients at the very first inkling that there may be a problem, before their patients and families perceive that a disease state has commenced its deadly course.  This kind of medical decision-making requires extreme sensitivity and should not be subject to interference by government bureaucrats regardless of their position or power to intrude on the doctor-patient relationship.
     When we contemplate how many dollars physicians like you save our country in downstream medical costs and patient life-years we realize that medical schools should be training more interventional family physicians.   In doing so we would be taking care of all Americans in a manner consistent with the international reputation for compassion and modernity we are trying to foster.
     We would like all family physicians to own and use ultrasound machines daily, for instance, as well as digital x-ray units, colonoscopes, mammography tools, in-house labs and heart monitors. We would like them to learn advanced surgical and cardiac diagnostic skills so that their patients trust them to make complex decisions about frightening symptoms.  We want family doctors to be aggressive about preventing cancers, heart attacks and infections even though the fruits of their efforts may be invisible and therefore difficult to measure.  We understand that when family physicians exercise hands-on skills and have lengthy appointments they should be paid much more than specialists, and we now accept that this is in the right order of things.  Family physicians are the cornerstone of this country's health.
     We are taking steps to recover for you all the payments that were unjustly withheld by the Medicare program while our investigation was underway, payments you earned legitimately, and we are unfreezing the assets we appropriated from your bank accounts two and a half years ago.
     Please return to medical practice immediately in the full knowledge that all our investigations have been terminated.  Your case is closed.  We apologize for having put you in the position of having to defend yourself against a brutish and unperceptive judicial hierarchy, and we are now inspired to correct the Lincoln Law and other vague, outmoded, and corrosive statutes.  We thank you for calling our attention to this country's legislative weaknesses.
     Best wishes for this holiday season, and thank you for making the contribution of your twenty years of medical expertise to our fellow citizens.


                                                                          Corey Smith, Federal Prosecutor
                                                                          Leah Butler, Civil Prosecutor
                                                                          Pam Marsh, U.S. Attorney

P.S.:  We'd like to schedule appointments with you as soon as you open a new practice.  Our own doctors don't do anything when we tell them what's bothering us.


Tuesday, December 24, 2013

The Government's Response: Notes, Part 1, Bare Bones of Its Attack

     There are four main claims against me in the government's Complaint.

     1.  I provided medical services to patients and billed for them, but the services weren't "necessary."
     2.  I provided medical services to patients, but the written documentation in the charts wasn't "adequate" to justify those services.
     3.  I did not "order" the tests and procedures provided in my clinics.
     4.  I administered, as part of patient care, medications that came from Northwest Pharmacy, which is located in Canada and therefore has "non-FDA-approved" products that may be acceptable, from the U.S. Government's standpoint (in its desire to protect all of us) for personal use, or for self-paying patients, or even for non-government insurance-covered patients--but for which it is illegal to bill costs to Medicare.

     The government makes liberal use, in its Complaint and its Response to my Motion to Dismiss, of terms that have a denunciatory timbre and, in the absence of conditioning facts, have been chosen to make the reader wince.
     For example, on page 3 of the Response:  "…defendants engaged in numerous fraudulent schemes to systematically bill Medicare…"  Schemes?  What schemes?  The word implies diabolical activities, and casts me as a modern-day Machiavelli employing devices both brutish and destructive to civilization.  Schemes suggests that I had an elaborate blueprint for profiting from an unwitting boss, without working, without patients, with evil intent, even in my absence.
     And on page 17:  "Defendant engaged in these fraudulent practices in order to make more money--millions of dollars--from Medicare."  Millions of dollars, as though the generic figure alone constituted a crime.  Millions of dollars were, in fact, earned over the course of the ten years Hawthorne Medical Center was open for business, and the three years Colasante Clinic served patients.  Any bookkeeper can do the calculations.  When twenty or thirty employees are earning between $12 and $30 per hour, and providers are paid $85,00 to $200,000 per year, payroll expenses alone for a clinic running full-sail run about $1 million.   Add to that the cost of medical supplies, specialized equipment, maintenance plans, utilities, liability insurance and employee benefits and the clinic had better make "millions of dollars" if it has any hope of surviving as a business.
     And on page 9:  "…the United States vigorously disputes defendants' self-serving characterization of their own actions as 'objectively reasonable' or 'patient specific.'"  (If you're confused by the plural "defendants," remember that the prosecutor has accused me, a human being, as well as Hawthorne Medical Center, a corporation, and Colasante Clinic, another corporation, as though we were all in cahoots together, like a pack of bandits.)   I wonder about the use of the term "self-serving," which insinuates, again, selfishness, a decidedly non-Protestant trait in an overwhelmingly Protestant--even puritanical, in its self-characterization as selfless--country.  Is it "self-serving" to act in one's own defense against government attack?  Is there something wrong with a defendant defending herself?  It's true that my Motion to Dismiss claims that my process of billing for each patient's care was "objectively reasonable" and "patient specific."  What's so "self-serving" about that?  A defendant like me, in defending against attack by a monster of an attacker like the American government, is supposed to serve herself, i.e., be "self-serving."  But the prosecutor chose this term with deliberateness, to expand on the implication of self-profitting, even "profiteering," and to persuade the reader, i.e., the judge, that self-serving profit, an abomination against our shared Protestant ethic, is the crime we law-abiders have to halt.  (Never mind the hypocrisy of our living in the most self-serving nation in the world.)
     I won't censure the prosecutor for using, over and over, terms like "unjust enrichment, "reckless disregard," "deliberate ignorance," and "false claims" because they now belong to the staggering junk pile of legal jargon and, like all cliches, have lost any kernel of nuance or meaning.
     In the next few posts I'll take the four general sets of claims the government has posited and answer them.  It is unfortunate that I can't reproduce the document I wrote for my lawyers, since it's full of details both medical and procedural, but I have been told to keep these secret in case I should need them for "the trial," that august event that looms like a mirage far into the future, is supposed to petrify me, and will cost practically every penny I can scrounge up, if I hope to secure my freedom.

Monday, December 23, 2013

Everything Breaks

     Last week I had to buy a new printer--both of mine died.  Six months ago my refrigerator broke and I bought a new one;  the ice maker didn't work from day one;  eight technician visits later it still hasn't been fixed.  The technician is coming out again this afternoon, but he says he doesn't know what's wrong.
     This year I've had to replace an oven, refrigerator, two printers, a computer, a television, two toilet handles, a DVD player, a bathtub drain, a washing machine, three hose nozzles, ten irrigation heads, a pair of muck boots, bathroom tile, a faucet, porch screens, rotten deck boards, and a gutter.   Planned obsolescence is working too well.  Things are supposed to break, according to the capitalist program for keeping our economy endlessly stimulated.  And we're supposed to keep buying things.  But my refrigerator was broken when I bought it--that's how well capitalism is working in this country.  Maybe I should buy another new one.
     IPods were built with irreplaceable batteries that lasted little more than a year--until someone sued Apple and forced the company to guarantee the battery for two years.
     Where does all that broken stuff go?
     Isn't something always breaking in your life?   If you own a home or a car your second job is keeping all your stuff maintained.  The roof leaks, the dryer locks up, the air conditioner goes out, the hose nozzles get corroded, the toilet flappers don't stick, the microwave gets weak.  We're selling our lives to the products we own, products designed to make us keep spending money.
     It's not that engineers don't know how to build things that last.  There are electric light bulbs that can burn for a hundred years, and cars that get a hundred miles per gallon--but they're not available for purchase.  Cartels keep these products out of our reach.  Manufacturers embed a chip into printers so that after 10,000 pages the components inside program the printers to fail.  "You might as well buy a new one," the company representatives are trained to say.
     Does anyone do repairs?
     Please click the video link below and get a bit of the inside story on manufacturers.  If nothing else you'll get the name of a website that tells you how to deprogram the chip in your printer so it won't crash after 10,000 copies.  You might decide join the growing coalition to stop buying things you don't need, and to fight planned obsolescence.  Maybe you'll decide to throw out your cell phone, as I did this year, in order to take back a little time for myself.  Maybe we should all stop shopping.


Sunday, December 22, 2013

My Response to the Government's Response to My Motion to Dismiss the Government's Claim

     The government's Response reiterates the points made in its original Claim, namely that it seeks to "recover" millions of dollars that were "falsely submitted" for payment.
     It does not claim that services weren't provided, or that the patients didn't exist, or that they didn't have medical problems for which they requested treatment, or even that the reasons for visits, tests and procedures weren't ascribed, in chart notes, by me--a licensed, Board-certified physician--or by one of my employed providers, to actual patient symptoms.  The government asserts willy-nilly that the services were "unnecessary," "inappropriate," or "non-covered."
     Who is the government, one might ask, to make decisions about whether services are necessary or appropriate?  Has the government been to medical school or residency?  Has the government been treating patients for decades?  Has the government accrued in-the-trenches experience that might inform its claim?  Does the government have a theory about the practice of medicine, especially as applied to people in underserved areas with no public transportation and limited access to specialists?
     We the people have invested the government with power to make medical judgments!  Through the False Claims Act (revised in 1986 to include specific investigative powers against the medical establishment, and ratified by elected legislators) Americans have given the government authority to decide whether doctors are doing a good job or not, and whether the decisions doctors make about patients should be subject to criminal allegations.
     No wonder doctors feel threatened and are afraid to make decisions alone.  No wonder they have banded together in groups.  ("There's safety in numbers," a gastroenterologist advised me last month, when I said I might go back into practice.  Safety from what?)  No wonder doctors turf patients from one specialist to another, and to the ER and back again, wasting time, attenuating risk.  They want to avoid scrutiny;  they don't want to be accused by insurance companies (including Medicare and Medicaid, which are government subsidiaries) of "overbilling."  The government surveys medical professional constantly, via computer programs that mark outliers and through its whistleblower mechanisms.
     There are two ways to look at the government's Response to my Motion to Dismiss.
     First, does the government have a legal basis for defending its claims against me?  The answer is:  Yes.   I can't do anything about that, unless I become a legislator and push back against some of the laws that are turning this country into a totalitarian state.   While we were sleeping our legislators enacted laws that are not in our best interests, laws that allow government agents access to and authority over every aspect of our lives.  Why did our elected officials do this?  Maybe they were sleeping too, or they wanted to hurry up the ratification process and get to lunch, or they didn't think we cared (because hardly anyone writes to legislators any more), or they were manipulated by lobbyists.  They didn't contemplate the downstream effects of passing statutes like amendments to the False Claims Act (or the NSA, as revealed by Snowden), so our constitutional rights get violated at the whim of government officials.
     The legal basis for my prosecutor's raid on my clinic and subsequent terrorizing of my life is located under Fed. R. Civ. P. 12(b)(6) and established in case law under Magluta v. Samples (2004)  and Hawthorne v. Mac Adjustment, Inc. (1998):  "In reviewing a option to dismiss…a district court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff."
     This means that if the federal government alleges wrongdoing against me, the court must accept the allegations.  This is terrible case law.  Why should a district court be required to accept a one-sided complaint as true and decide in favor of the plaintiff?  Since when is the government always right?  We know it's not, by the preponderance of cases it loses when a defendant decides not to settle or is forced to go to trial.
     "The prosecutor loses, and you know what?" my lawyer quipped.  "He gets up and goes to work the next day.  He has nothing to lose."
      No wonder government prosecutors push so hard:  they have statutes under which they can prosecute, and case law to back them up, and nothing to lose if they lose:  no legal fees, no smear on their reputations, no loss of their jobs, no professional opprobrium, no sidelong looks from friends and acquaintances for the rest of their lives.  Is anyone even paying attention to government prosecutors?
     Here's another thing my lawyer said:  "The government's stance is that it knows fraud when it sees it."
     Really?  How?  How does the government know fraud?
     By the numbers.  Any doctor who is a high biller compared to other doctors must be committing fraud.  Wow--that's a real scientific standard!  It allows the government to search and seize records and assets from the top 20% of doctors, if it chooses.  And it does choose, because the government has orders from the Department of Justice and the president himself to take back money for Medicare fraud.
How do they find fraud?  They run the numbers.
     The second way to look at the government's Response to my Motion to Dismiss is to ask, does the government have a medical basis for defending its claims against me, and the answer is:  No.
     I will defend my medical decision-making even though statistics show that I'm in the top percentile of billers.  A percentile ranking is not confirmation of guilt.  I billed more because I did more.  That's not fraud.  I did more for my patients because I was able to do more and because I refused to cow to the prevailing (fear-based) standard of care--the one in which family doctors function as turnstiles for medical care, sending patients "all over creation" (as my mother says), and doing almost nothing in the way of diagnostics or procedures on-site.
     The government is not a medical professional.  The government hasn't run a clinic in a rural area.  The government hasn't tallied up how much money was saved by treating patients early and on-site at my clinics.  The government hasn't calculated how much quality of life was preserved for my patients, who knew where to go to get whatever they needed when they had symptoms, day or night, and whose gratitude for this kind of total care was immense.