Just for doing their job? Please support Senator Hatch’s new
bill!
Action Alert!
There are now over 5,000 federal statutory crimes and over
300,000 regulatory crimes on the books—though Americans are unaware
of an overwhelming majority of them. As a result, it has been
estimated that the typical professional unknowingly commits
several federal crimes in the course of a
single workday. (Dog owners, beware! It is
now a federal crime to walk your dog on federal
lands with a leash that is longer than six feet!)
It may sound absurd, but these obscure crimes have become a
problem of real consequence, especially for those in the healthcare
profession.
Doctors operating in today’s labyrinth of
regulations—particularly integrative doctors, who are often targeted
by the medical establishment and federal authorities, though all
doctors face the same problem—are extremely vulnerable to
prosecution and jail time on arbitrary or even trumped-up charges.
Many of these “crimes” derive from new laws and regulations
enacted through the 1990s with the stated goal of preventing
healthcare fraud and abuse. While there is certainly massive fraud
in Medicare, these laws in practice have created a situation where
an innocent error or the slightest deviation from standard practice
can land a doctor in jail.
The reason? For most crimes, the statutory language explicitly
requires that there be criminal intent, also called mens rea
(Latin for “guilty mind”). Mens rea means that prosecutors
must prove that a defendant acted with the knowledge that he or she
was committing a crime. It is meant to prevent Americans from
unwittingly becoming criminals by breaking a law, particularly an
obscure one. Unfortunately the mens rea concept has
been omitted from too many obscure laws—particularly the newer ones.
US attorneys know this. They have also discovered that even the
threat of prosecution and arbitrary penalties is enough to
intimidate most doctors into paying hefty settlements to avoid jail
time, even larger fines, and/or having his or her license revoked.
The money collected through these schemes is then used to fund more
fraud investigations.
Happily,
new legislation introduced by Sen. Orin Hatch
(R-UT) seeks to address this problem by adding a default mens
rea standard for all statutes and regulations that lack an
explicit intent requirement.
Here are just a few examples of the absurdities created by this
system—and why Sen. Hatch’s bill is so important:
The Health Insurance Portability and Accountability
Act of 1996 (HIPAA)
added anti-fraud provisions providing jail
terms of up to ten years. According to the law, if a patient
dies while being given a “medically unnecessary” treatment paid
for by an outside party and the government decides that the
treatment caused the death, the doctor can go to jail for life.
Yet even Medicare cannot tell a doctor in advance what it
considers “medically unnecessary.” This legislation also
extended the anti-fraud provisions to cover bills submitted to
any “healthcare benefit program.” Under federal law, healthcare
benefit programs include private insurance as well as federal
programs. So a doctor can go to jail for getting on the wrong
side of a private insurance company.
Medicare and Medicaid rules represent a
hopeless minefield for doctors. Some of the laws passed in the
’90s were designed to punish cheating both in federal programs
and in state programs with any federal financing. The trouble
with these laws is their vagueness. “Not medically necessary”
and “fraud” are defined the same way, even though they are
potentially very different. This also provides an opening for
the AMA and the pharmaceutical industry to try to rule what
doctors can and cannot do. In most cases, natural
therapies—which are usually much safer and often more
effective—are categorized as “not medically necessary,” thus
fraudulent, thus criminal. In this way, medical care has become
a very high-risk profession. Note also that drug companies
themselves could, in theory, run afoul of the fraud regulations,
sending Big Pharma execs to jail. But federal rules specify that
if this happens, the government cannot purchase drugs from the
company in question for years, with the result that Big Pharma
executives never go to jail, not matter what frauds they commit.
It is also very easy for a doctor to make a false
claim. In one experiment, a researcher contacted five
different government Medicare billing advisors about a possible
claim, and got five different answers about how to handle it.
And relying on these advisors is not allowed as a legal defense!
So even if a doctor stopped practicing and instead spent all of
his or her time supervising each and every bill, the government
can easily claim error and thus fraud. It isn’t that every
error will be treated as fraud. It is just that it could
This is a powerful weapon of intimidation and reprisal.
We told you in 2014 that Medicare
will no longer pay for more than one medical test a year
that is not directly related to an illness being treated by your
doctor. In theory, the patient could pay for the additional
testing, but if those tests are deemed “medically
unnecessary,” your doctor could go to jail for
writing that prescription if
he or she bills Medicare for the test. And here is
a further Catch-22: it is illegal for your doctor to bill you
personally for something that Medicare does cover, even
though finding out what Medicare does or doesn’t cover may be
next to impossible. And if your doctor wants to discuss the
results of the test and prescribe a course of treatment, all
discussion and treatment during your visit must be about that
original ailment, even if you’re now sick with bronchitis
instead. If you want to discuss the bronchitis, you must make
another appointment.
You can avoid all these problems by staying out of Medicare.
Then your doctor can prescribe what he or she thinks best. But
even if you can get or afford alternative medical insurance,
keep in mind that the government will deny you any Social
Security payments if you have not signed up for Medicare.
Another alternative is to sign up for Social Security, which
will automatically enroll you in Medicare A and B, but then tell
the government to remove you from Part B. Part A is hospital
services, and that is enough to keep your Social Security. Part
B covers the doctor’s office, and if you don’t have it, then the
doctor cannot be charged with billing you for services covered
by Medicare.
This same broken system
also discourages technological innovation,
since each new test or treatment must go through the
time-consuming process of getting a Medicare billing code and
then convince Medicare to actually pay for the service, which is
very difficult and often takes many years.
The irony is that this criminalization of doctors—particularly
doctors who favor natural treatments—has done little to actually
stop the medical fraud perpetrated mostly by real criminals but also
by some doctors.
We’ve previously reported that when Medicare
reduced reimbursements for oncologists in 2003, some physicians
started giving their patients more expensive chemotherapy and other
cancer treatments in return for kickbacks from the pharmaceutical
companies. A study found that these doctors could buy drugs at a
discount and then dispense them at the higher Medicare rates in
their offices, in effect profiting at the expense of the patient.
This brief list of abuses raises the question: who in his or her
right mind would choose to practice medicine under these conditions?
There’s no easy fix, but Sen. Hatch’s legislation requiring evidence
of criminal intent will at least curb many of the more arbitrary and
ridiculous abuses.