The War on Doctors and Patients

June 2, 2013

The federal government and private payers have declared war on physicians under the banner fraud, waste, and abuse. The AMA can't help, but you can take action.

Last week’s article began with a joke involving two cows, and the differences between capitalism, socialism, fascism and communism. The joke illustrated a once "unthinkable" problem: What to do when the right of a physician to control his medical practice has been arrogated by someone else? It is bad enough government and private insurance have literally have taken over your cows, and don’t want to pay for the milk. Worse, they are busy as we speak, dreaming up ever more elaborate ways of making it seem that you have done something wrong to justify skipping out on the tab.

Every day, in every physician's practice I visit, I see the same thing, a "war on doctors and patients":

1. In the relative blink of an eye, government and now private plans dictate when, where, why, and how much time you are permitted to see a patient. You are told how much treatment the patient should require, and in cases of psychotherapy, that you should pronounce him "cured" after precisely so many sessions. With government insurance, you are told with whom you may (and may not) form relationships with under Stark Law and similar state and federal laws. You are threatened with felony prosecution, and imprisonment, for the slightest violation of these rules. All of this, despite the promise of federal non-interference (it is against the law for the federal government to interfere with your practice).

2. You are being cheated at a systemic level by government and private plans, following a similar pattern as the financially devastating, "post-claims underwriting," which has been used for years against patients. It works this way: After the services are rendered, an army of auditors scour documents looking for a pretext to deny payment (which was often pre-authorized.)  This is accomplished through Medicare Recovery Audit Contractor (RAC) audits, or in the case of private insurance plans, a "benefits review audit," which I described in this column. Sometimes, the claim is that you didn’t document the file correctly. Other times, the alleged fault is based purely on statistics.

I used the term "unthinkable" earlier with purpose. There was a time when these oppressive forces would never have dared to presume to tell a physician what to do. (They were literally terrified of you, more particularly, the political power once wielded by the AMA.) Nothing spoils, however, like success. When Medicare and Medicaid turned out to be a financial godsend to doctors, the AMA’s staunch conservative ideology seemed out of touch. Recall, it is precisely what the AMA objected to in 1965 that is causing most of the trouble today. The AMA warned what would happen if the government or corporations started telling doctors what to do. That’s why 42 U.S.C. 1395 was included in the Medicare and Medicaid statute.

Driving this is a simple fact: Congress and corporations cannot afford to keep the promises they have made to beneficiaries (and they don’t want to tell policyholders and Medicare beneficiaries "no.") Instead, they have "declared war" on you under the banner, "fraud, waste, and abuse." No amount of AMA power can squeeze money from turnips.  But what you can (and must) do in my opinion, is once again concentrate your forces. The public will side with you, but you have to blow the whistle to make the public aware of what is really going on.

 If you are concerned about this, a good place to start is the AAPS, which held a summit on May 17 entitled, "The War on Doctors and Patients." Full versions of the presentations are available for free here.