Jewish World Review Jan 21, 2005/ 11 Shevat 5765
Drs. Michael A. Glueck & Robert J. Cihak
Two-Faced Medicare Enforcement
Federal government prosecutors are sending doctors to prison for making
mistakes in filing Medicare paperwork.
At the same time, Medicare customer service representatives are apparently
not even reprimanded for a 96 percent error rate in answering questions
about how to handle physician billings.
These representatives work at call centers operated by insurance carriers
handling Medicare claims, and are tasked with providing clear and complete
information about program billing requirements.
However, according to an audit conducted by the Government Accountability
Office (GAO, formerly the General Accounting Office) from September 2003 to
June 2004, call center reps answered only 4 percent of policy-oriented
questions correctly and completely.
The call centers responded to more than 21 million inquiries in fiscal year
2003. Most of these calls were easily answered questions about the status of
The huge error rate was in answering four specific policy questions about
Medicare coverage and billing requirements. The questions and answers were
cleared and approved by the Medicare administration before GAO employees
made their calls. When they made the calls, the GAO agents identified
themselves as working for the GAO and why they were calling with these
questions. And the reps could use any and all of the reference materials
provided them, essentially an open-book test.
This GAO report is further evidence, much lamented in this column, of the
obstacles facing Medicare recipients and the physicians who serve them. The
House Ways and Means Committee received the document "Call Centers Need to
Improve Responses to Policy-Oriented Questions from Providers" last year.
(See at GAO-04-669 http://www.gao.gov/new.items/d04669.pdf.)
Medicare paid more than $271 billion in claims in 2003. Since the program
was created in 1965, its rules have swollen into more than 100,000 pages of
statutes, regulations, policies and procedures that specify what the program
will pay for, and under what circumstances.
No one can possibly master all the rules.
In spite of this, the law prescribes very strong penalties for "any person"
defrauding Medicare. In practice, "any person" means "any doctor" and
occasionally "a few insurance company executives." All the rest, including
the workers at call centers, are held accountable to much lower standards
and rarely suffer severe penalties, despite what the law says.
For example, the federal government allows some insurance company
intermediaries for Medicare to waste up to 6 percent in incorrectly paid
As the result of an audit instigated by whistle-blower Theresa Burr about
BlueCross BlueShield of Florida, the federal government found mistakes
costing taxpayers $74 million - but let the company get away with them. And
this is just one intermediary out of hundreds.
What is the cause of such inequity before the law?
Although the blame-the-doctors trend started decades ago, the tendency
gained traction with a popularized fear of rampant "fraud and abuse" of the
Medicare program - a bogeyman based on unsubstantiated estimates and no
This myth stampeded Congress into passing severe penalties in the Health
Insurance Portability and Accountability Act (HIPAA) of 1996 (HR 3103;
Public Law No: 104-191), which now requires the federal government to spend
more than $1 billion every year to root out Medicare fraud and abuse.
HIPAA is part of a trend to criminalize formerly civil disputes. This law
creates so many potential "criminals" and gives government so much power
that prosecutors have to pick and choose who to go after, due both to the
huge pool of possibly guilty folks and their inability to put everybody in
jail. Fair investigation, equal protection, and just prosecution are
impossible in this environment.
Justice is obviously not served by applying varying standards of perfection
to call center, insurance company and medical persons, in defiance of the
The Medicare program is fleecing a fortune out of the U.S. taxpayers. And
it's impossible for anyone, including government consultants, to master its
arcane intricacies. So let's quit pretending that throwing doctors into
prison for billing errors will stem the flow of dollars into the Medicare
We believe justice would be better served by adopting a few simple measures,
* Repeal criminal penalties for unintentional Medicare billing errors.
* Allow doctors a billing error rate short of perfection, maybe the same six
percent allowed insurance companies.
* For true fraud, raise the threshold of damages before severe penalties can
be levied. Currently, any alleged insurance billing error over $100 can
result in a fraud charge leading to a five-year jail term.
* Maintain the government's burden of proof for severe penalties. Remember
"innocent until proven guilty"?
* Allow jurors access to the facts and truth about everybody in the
courtroom, including paid witnesses who stand to take a percentage of any
fines the government collects if the accused is found guilty.
Overzealous HIPAA enforcement is making life more difficult for millions of
Medicare recipients, destroying the lives of individual doctors and driving
many others out of the program.
Many Medicare recipients are already having trouble finding doctors willing
to accept risks of prosecution for the low payments allowed by the program.
These severe HIPAA penalties are part of the problem, not part of the
Editor's Note: Robert J. Cihak, M.D. wrote this week's column.
Michael Arnold Glueck, M.D., is a multiple award winning writer who comments
on medical-legal issues. Robert J. Cihak, M.D., is a Discovery Institute
Senior Fellow and a past president of the Association of American Physicians
and Surgeons. Both JWR contributors are Harvard trained diagnostic radiologists.
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