Anyone who doesn't believe that the Federal Government selectively harasses some individuals didn't see the comedian Charles Brenner on the news last night (January 27, 2004) describing how he is now being strip searched by the FBI not just once but sometimes twice each and every time he embarks upon plane flights-all because of some snide comments he made to the press about Homeland Security.

My soon to be ex-wife is convinced that I would still be able to earn a living as a medical doctor making house calls to developmentally disabled patients living in group homes all around the bay area, had I not testified at a Federal hearing in support of a psychologist who was being investigated by National Heritage Insurance Company (the fiscal intermediary for Medicare). At the conclusion of that hearing August 14, 2001 a letter was mailed to me (and to another doctor-the star witness-who also had testified at the hearing) from NHIC the very same day, informing me that I was being placed, not on "post payment review," where only some 10 to 30 claims are audited, but on 100% prepayment review, where ALL my claims are audited, and nothing paid to me unless the reviewers deemed a visit "medically necessary." These reviewers do not all have medical backgrounds; indeed one of them had NO medical background, having been only a law clerk prior to working for NHIC. The psychologist, by the way, was vindicated at this "Administrative Law Judge Hearing; and every penny of a $ 60,000 fine for overbilling returned to him following the judge's decision in his favor.

As it turned out (see the July 2003 issue of The Coastal Post for details) the NHIC reviewers then began deeming some 93% of my visits "not medically necessary." I of course appealed NHIC's reviewers' determinations, but it took over two years of requesting higher and higher levels of review before I finally reached the level of the Administrative Law Judge Hearing. (Prior to that level, the hearing officers were all on salary by the NHIC, which apparently has a policy-a former employee has told me-of awarding a kickback of 10 cents for every dollar that otherwise might go to doctors).

Following two ALJ hearings-in April and September of 2003-the judge-relying heavily on the opinion of a court-appointed doctor-ruled that all 1400 of my disputed claims were indeed "medically necessary" after all, and awarded me 100% of the disputed amounts. This was all well and good, except for the fact that NHIC continued to keep me on 100% prepayment review, and still does to this very day, which is why I am writing this article. As of January 27, 2004, I still remain on 100% prepayment review; but now, instead of rejecting only 93% of my claims, virtually 100% of my claims are now being denied on some pretext or other. The stance of NHIC remains as it was initially, when its medical director at the time, Dr. Gerald Rogan, opined in writing that residential care home patients such as the developmentally disabled ones who constitute the bulk of my practice, never need to be seen on housecalls at their homes because by definition they are not sufficiently ill to be seen, else they would have been placed at a higher level of care, such as in a Skilled Nursing Facility, in the first place. Consequently, all such patients are capable of getting themselves to a doctor's office on their own by whatever means necessary (presumably by hijacking a car, once freed from their wheelchairs, in some cases). I am only using hyperbole in this instance because Dr. Rogan's written comments were so absurd on their face.

As it turned out, hours and hours of phone conversations with Dr. Rogan by myself and my attorney got him to soften his stance to concede that indeed his blanket statements went too far, and that certainly Board and Care patients in certain homes, which were licensed as "Intermediate Care Facilities," should be seen at least every 60 days, as required by State regulations; and furthermore, that when seeing patients periodically at some of these facilities, it was even justified to see some of those who were not acutely ill at the time, because of the long distances I had to travel just to get to the home in the first place.

Apparently Dr. Rogan's softened stance was unacceptable to NHIC, which fired him in July of 2003. And since then NHIC, and its overseeing body, CMS (The Center for Medicare and Medicaid Services) are in lockstep with the position that my documentation-the administrative law judge's opinion notwithstanding-never was and continues not to be sufficient to support the medical necessity of the services I have been providing. This despite the fact that I have continued to upgrade the level of my documentation continuously and have been doing so for years.

Meanwhile-deprived of the ability to earn a livelihood for my family while trying to continue on in the niche of medicine to which I have devoted the past 12 years-my car was repossessed; I have been unable to pay my bills, so that my credit rating is in the tank; and one week ago my house-where I have been living for the past 25 years and raising my two daughters, ages 12 and 16-has been foreclosed on and I have just received an eviction notice. So my wife and I and our two daughters and four miniature dachshunds now face the prospect of homelessness. Although we are going our separate ways, I do not have enough cash on hand to rent an apartment; and my wife and daughters have so far been unsuccessful in finding-after two months of searching-for a place to live whose landlord will rent to them with our credit rating in the tank, much less a place that will allow dogs. The dogs may have to be put to sleep or given away; and God only knows where my wife and daughters will be able to live and how long they will be able to survive if I continue to remain on 100% prepayment review with NHIC.

Is this all a bit much for life in our so-called Democracy? Shouldn't I be able to sue the pants off NHIC? I have consulted over a dozen lawyers about this situation, and all of them concur that it is virtually fruitless to try and fight NHIC in federal court. Apparently they all feel that NHIC has some sort of immunity against prosecution for such abusive behavior simply because they are contracting to provide services for a federal agency. But even if that were not true, the reality is that I have no money to pay the considerable fees that such a lawsuit would require; and "pro bono" lawyers, I have been assured, do not have the expertise to successfully bring a case in Federal court, else they would not be doing pro bono work in the first place. The reality is that any lawyer who has sufficient expertise to take on such a case has no financial motivation to do so because the work required to bring such a case is so great, and the risk of winning such a suit so high that no truly competent lawyer would take on such a case on a contingency basis.

Or am I mistaken? Is there a competent lawyer out there who is willing to do so? Is there an Erin Bracovich-style lawyer out there somewhere in California? If so, I would hope that he or she would contact me, and soon. Although my address for the next few months may be uncertain, The Medical Board of California will always know my whereabouts.

I intend to fight this battle to the death. Why? Because of patients like "Janet," (not her real name) a developmentally disabled woman in her 30's who was just admitted to an intermediate care facility in San Rafael where I serve as the "house doctor". She had been transferred there at the request of social workers from the Golden Gate Regional Center because she had been deteriorating in the Skilled Nursing Facility in Novato where she had been living. Ironically, she was being transferred to a facility that typically provides a lower level of care than a Skilled Nursing Facility, simply because they knew that she had not been getting proper care at the SNF where she had been staying, where no doctor had visited her there for the past three years.

She has a seizure disorder, averaging two seizures a year; and during the past six months had become wheelchair bound instead of ambulatory, and progressively more and more lethargic. She had apparently fallen out of her wheelchair twice during the past six months and hit her head on the floor both times, raising the question of a subdural hematoma (a blood clot in the brain, which can be fatal). When I examined her she was mute, lethargic, and drooling in her wheelchair. During the next five days she did not have a bowel movement, and was becoming even more lethargic. I visited her within 10 minutes of her admission to her Intermediate Care Facility, and over the course of the next week managed her constipation problem via daily, and sometimes twice daily, phone discussions with the facility's nurse. I am referring her to a neurologist for further evaluation. Janet may simply be just overmedicated (she is on 3 different seizure medications), but she needs and deserves to receive the kind of appropriate work-up that modern medicine has to offer, but which Medicare, because of its carrier NHIC, is making inordinately and unnecessarily difficult to provide.

The public needs to know about the health care crisis that is tantamount to euthanasia for the thousands of developmentally disabled adults who are-because of NHIC's harassment of doctors who serve them-not receiving the care they need and deserve. (These are people who are not in a position to complain; and they certainly are not going to contact their Congresspersons about their lack of medical care.) NHIC is far more concerned about their bottom line than providing proper medical care to this pitiable segment of our society. But nothing is being done to change it. Is its overseeing body, CMS, simply a fox being placed in charge of the henhouse? The fault does not lie entirely with medical directors such as Dr. Rogan. He was in a compromised position, caught between the needs of patients and the financial bottom line of NHIC. Once he began to soften his stance he was fired, and his position abolished.

The fault is systemic and lies with CMS for failing to properly discipline NHIC. Once again, I ask (as I did in my July 2003 front page article in this newspaper): What is the purpose of having these Administrative Law Judge Hearings? Is it just for the purpose of providing an illusion of due process? Have medical doctors become nothing more the Sheep going to slaughter? Whatever happened to "due process?" Is it just a meaningless charade when it comes to those Medicare patients who are unable to stand up for their rights? Does NHIC in fact have super-judicial powers?

Mind you, it is not Medicare itself that is abandoning patients: it is NHIC, which has contracted with Medicare's arm called the Center for Medicare and Medicaid Services. Only your calls and letters to Senators and Congresspeople are likely to change this deplorable situation. If NHIC is not competent to provide proper health care coverage for Medicare beneficiaries, then some other organization should be given that opportunity.

Once again, I say: This level of carrier misconduct must be addressed. It is harming both doctors and patients.

I owe a debt of gratitude to a patient-and-doctor advocacy organization called The Physicians' Organizing Committee. They are located at 450 Sutter Street in San Francisco (phone 415 434-9335). Their efforts on my behalf have been tireless and invaluable in communicating the injustices I have suffered to the attention of the Administrative Law Judge who heard my case. Without their help I am sure that my financial rape at the hands of NHIC would have been even more devastating that it has been. But the playing field is not level. Doctors of every hue who are trying to serve the developmentally disabled are being systematically harassed unmercifully. Only a public outcry on behalf of these most pitiable disenfranchised members of society is likely to change matters.