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Criminalizing health care Once again we see the irony of trying to avoid the rationing of health care by eliminating waste and fraud. Whether those efforts are made through market forces or through federal regulations, the result is simply to increase covert rationing. Just as the HMO incents physicians to withhold services by threatening loss of income or loss of jobs, the anti-fraud initiatives incent physicians to withhold services by threatening potential fines or jail terms. Either way, the physician is compelled to withhold services. All signs point to the continued escalation of the use of the Regulatory Speed Trap. The Clintonians have amply demonstrated their zeal for using this tool to bring physicians to heel, and if the public and Congress continue cheering them on, there is no reason for them to stop. We're not saying, however, that the feds will allow their pursuit of physician fraud to accelerate to orgiastic proportions. That would be counterproductive. When a shark is preying on a school of mackerel, it does not allow its feeding to become so frenzied as to wipe out or disperse the school. It makes quick, terror-inducing strikes, grabs a few fish, then retreats, allowing the mackerel to re-form themselves in serene, piscatorial calm. The shark is thinking long-term.
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We believe physicians will have to resolve themselves to a mackerel-like mentality. “The shark probably won’t get me. But it’s always out there, and it’s always hungry. It will continue to strike now and then, viciously and at random. I’ll try to stay in the middle of this school, away from the edges, and do nothing to draw attention to myself. And I’ll always be alert for it, always watching, even as I try to fulfill my own mackerel-needs.”
We can almost hear a few of you dear readers saying something like, “Nuts to the doctors. Couldn’t happen to a nicer bunch.”
We’ll be the first to admit that doctors have probably – by virtue of their longstanding and exuberant embrasure of a runaway fee-for-service health care system – lost much of their moral authority. It is partially the ostentatious and avaricious behavior of many doctors, the outright fraudulent behavior of some others, and the inability or unwillingness of the profession to police itself, that has made the feds’ fraud argument sound so persuasive in the first place. So if doctors have to rely on the sympathy of the public to relieve them of the burden of excessive fraud and abuse charges, they’d better pack their toothbrushes. They’re going to jail.
The reason the general public should be concerned is not because of what is happening to the poor doctors. It is because of what is happening to them.
For what can more effectively separate the interests of doctors from the interests of their patients than the threat of a career-ending federal conviction, loss of all personal assets, and hard time in a federal prison? Consider – what is a physician to do when faced with a decision on whether to offer a medical service he believes is needed, but which he knows to be controversial? In the old days a disagreement with the payer over such a service might result in a withholding of payment. Now it might result in federal charges.
The physician’s wariness of the feds is not merely an occasional thing, either. It promises to become an ever-present and pervasive concern that colors each and every meeting between a doctor and a patient. The desire to avoid the scrutiny of the anti-fraud bureaucracy will become as important to every health care decision as avoiding the scrutiny of the IRS is to every financial decision. The major impact of the E&M regulations, in fact, will be that they guarantee the physician will have to spend substantial time thinking about how to avoid a fraud rap with each and every patient encounter. It’s the law.
Avoiding fraud is not what patients want their doctors to be thinking about when they’re describing the characteristics of their chest pain, or asking advice about mammograms. It is no more in their best interest than it is in the doctors’ best interest.
What we have to do, we patients and doctors, is to figure out how to rededicate ourselves to our commitment to each other. Until we do, the wedge wielded by the anti-fraud and abuse crowd will continue driving us apart, leaving each of us to flounder on our own in a health care system that has marginalized us, commoditized us, and criminalized us.
Next - Where all this leaves the doctor and the patient
Surviving the Health Care System is adapted with permission from YourDoctorintheFamily.com
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