Jewish World Review Oct. 13, 2003 / 17 Tishrei, 5764

Drs. Michael A. Glueck & Robert J. Cihak

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Consumer Reports

Medicare defrauds itself | In a free society, the purpose of tort and criminal law (besides enriching lawyers) is to deter and punish wrongdoers, ideally a small minority of people in the society. Justice requires that wrongdoers be treated as equally as possible, and that the punishment should be commensurate with the offense. The Biblical precept, "An eye for an eye" also means "An eye, but no more." And even though we know that some political influence on the uses of law is inevitable and that rich people get better lawyers than poor people, we accept it as a fact of life.

We accept it, oddly enough, because the vast majority of us aren't criminals, and don't expect to find ourselves ensnared in a legal system that's been redesigned to turn us all into criminals, and terrorize us with extravagant punishments, capriciously visited on unlucky human scapegoats.

And, yes, that's exactly what's happening in America today. In these pages, you've read about some of the penalties levied for honest mistakes on income tax returns, for draining a pond on private property without getting government permission, and for saying the wrong word to the wrong person. Our legal system no longer merely deters a few criminals; it creates them by the millions, through its complexity and arbitrariness.

Look, for example, at the current legal status of your typical medical criminal - we mean physician.

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But other people get off far more easily - if they're executives of major corporations or politically connected.

For example, at last month's annual meeting of Association of American Physicians and Surgeons (AAPS) [] in Point Clear, AL, Theresa Burr, a former claims examiner for Blue Cross Blue Shield of Florida and whistleblower described her personal observations of the Medicare fraud perpetrated by Blue Cross Blue Shield of Florida in the 1980s and 90s. Burr also describes part of her experience in the Summer 2003 issue of the Journal of American Physicians and Surgeons. []

Burr saw other employees follow company policies and do many things she considered unethical and the federal Department of Justice later found illegal. Doctors and suppliers who complained about the company later found their payments delayed or withheld. Because the company denied payment for oxygen, some patients died, according to Burr. Many patients were capriciously denied many other life-supporting services.

She also saw her former employer delay, shred or delete thousands and thousands of claims submitted by patients, doctors, and medical suppliers. She found bins of mail claims in the mail room headed for the shredding machines. She saw the company delete whole blocks of electronic claims within a certain time period from the claims processing computer.

The federal government awarded a contract to Blue Cross Blue Shield of Florida (BCBSF) to process claims for Medicare beneficiaries, their doctors and suppliers, and to distribute payment for the claims. The US Department of Justice found Blue Cross Blue Shield of Florida guilty of gross mismanagement, lying to the government and the public about the state of claims, cheating the government (i.e., us taxpayers) of an estimated $900 million, according to Burr. Yet the government settled the dispute for $10 million.

Part of the argument for leniency was that no other company was big enough to handle the volume of paperwork. Yet at the same time that the Department of Justice fraud investigation was underway the government awarded yet another contract to the company.

Later, on top of this contract, and again despite admission of fraudulent practices by BCBSF, the company was also awarded the contract to seek fraud - and promptly found it - but on the part of Medicare patients and people supplying goods and services to them.

Burr notes "Everyone that held positions of authority with this Carrier stayed in their positions; one person even became President." She also says "Fraud clearly pays if you are a Medicare Contractor."

Now let's compare with other government dealings.

We note a recent US Dept. of Labor report of unemployment compensation overpayments to the unemployed in 2002 totaling $3.7 billion, on top of the $37 billion validly paid out, compared with $0.27 billion underpaid.

Defense contracting has been rife with similar reports of possible and outright fraud. Indeed, according to the General Accounting Office, the Pentagon cannot account properly for well over $2 trillion (yes, trillion) in disbursements. But business goes on, including all those juicy contracts for the reconstruction of Iraq.

And when was the last time the CIA passed a standard government audit? Back in the 60s - because that was the last time they let the auditors through the door.

All of which leads to an interesting question. Why should the government treat physicians, generally among the more honorable professions on earth, as a bunch of criminals not due their civil rights? We call it fraudulent abuse of the law.

One answer suggests itself - as justification for the continuing government take-over of medicine. And your life!

Michael Arnold Glueck, M.D., is a multiple award winning writer who comments on medical-legal issues. Robert J. Cihak, M.D., is a past president of the Association of American Physicians and Surgeons and a Discovery Institute honorary fellow and board member. Both JWR contributors are Harvard trained diagnostic radiologists. Comment by clicking here.


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