Mid-Atlantic Health Law TOPICS

Gordon Feinblatt's recent physician seminar attracted the press, and the following is a reprint of the resulting article that ran in several local newspapers.

Doctors who turned out for a seminar on how to stay within the bounds of health care fraud laws instead buffeted a federal prosecutor [on March 3, 1999] with complaints that ever-changing regulations have put them "under siege."

The physicians said they are afraid that mistakes on Medicare bills will cost them thousands of dollars in fines and that laws encouraging patients to be "whistle-blowers" jeopardize physician-patient relationships.

"It's pitting patients against doctors," said Dr. Stanley Katz, a Baltimore podiatrist. "We're doctors. We have to hear from a lawyer how to conduct ourselves. It's not right."

But Assistant U.S. Attorney Hollis Fleischer told the group of more than 30 doctors, lawyers and accountants [that] night that the scope of Medicare fraud "is astounding, just astounding."

Fleischer, the health care fraud coordinator for civil suits in the U.S. Attorney's Office in Baltimore, said the government has the right to review billing practices because physicians are "getting the money."

"You are suffering because this is a system that was set up assuming people were honest," she said. "But there have been some bad apples and that is costing millions of dollars."

Since declaring health care fraud a priority, the Justice Department has seen criminal prosecutions rise from 166 in 1993 to 522 in 1997, according to data from the Transactional Records Access Clearinghouse at Syracuse University.

TRAC said Maryland criminal health fraud referrals have bounced from 21 in 1993 to seven in 1995 and up to 41 in 1997. The number of fraud cases prosecuted in Maryland also varied, from two in 1993 to none in 1994 and back up to five in 1997.

The pace of prosecutions could pick up under a 1996 law that set up a health care fraud task force and boosted funding. Cases under that law are now beginning to reach the courts, said Assistant U.S. Attorney Sandra Wilkinson, who specializes in criminal health care fraud cases in Maryland.

Fleischer's appearance before the doctors... was part of the "prevention and deterrence" aspect of the U.S. Attorney's Office's fight against health care fraud.

"We're trying to get as much money for the government and put away as many bad guys as we can," Fleischer said.

That zeal has medical professionals worried, even though Fleischer said innocent mistakes would likely not be pursued by her office.

"They consider everything fraud," said Phyllis Jensen, the billing manager for a Baltimore doctor. "Medicare is looking to get some bucks."

Physicians at the meeting said they are so worried about being accused of "upcoding" -- charging medicare for a more expensive procedure than was performed -- that they resort to "downcoding."

"You heard her (Fleischer) admit that inadvertent mistakes are technically in violation of the law, and that you have to trust her not to pursue them," said Dr. Scott Becker, a Chevy Chase podiatrist.

If the mistake appears to be inadvertent, physicians are usually just asked to return overpayments, said Carolyn Jacobs, a health care fraud lawyer with Gordon Feinblatt, which sponsored the seminar.

But even doctors who get off the hook can wind up with thousands of dollars in lawyers' fees and settlement payments. Henry Schwartz, another lawyer with Gordon Feinblatt, said providers should protect themselves with "compliance plans" -- written procedures for monitoring billing practices.

But physicians balked at the prospect of adding more paperwork to their jobs. "

Because of a small number of people who committed fraud, we have the onerous burden of documenting and overdocumenting that takes time away from the patients," said Dr. Sharon Pusin, a Baltimore ophthalmologist. "It's hurting the quality of medicine. It takes the pleasure away from trying to help people."

While Maryland has the ninth-highest number of "whistle-blower" cases referred to the U.S. Attorney, Fleischer said, her office takes on less than 30 percent of them.

Still, Schwartz noted that while "whistle-blower" cases do not often go to trial, doctors may still be responsible for settlements and lawyer fees. And physicians said the focus on wrongdoing makes it difficult for them to establish trust with their patients.

"The good part is they want to cut down on fraud and save the government money," said Becker. "But in their zeal they created an impossible set of regulations and imposed it on doctors." Amy Jeter, Thursday, March 4, 1999.

(Reprinted with permission from Capital News Service, a student-staffed wire service of the University of Maryland College of Journalism, operated across the State.)