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July, 2003

Marin Doctor For Disabled Driven To Bankruptcy
By Howard A. Thornton, MD
 

   I thought I had found the Holy Grail for providing health care to the disabled when I happened to be on duty at the first aid station for Brooks Hall in San Francisco in the fall of 1992. That was when John Scully unveiled Apple Computer's new 4.2 pound Powerbook, the low-weight laptop that revolutionized portable computing. That was just the tool That I needed in order to provide cutting-edge medical care to a huge population of underserved patients: those residing in so-called Board and Care homes. At that time such patients only comprised a small portion of my practice.
   Over the next few years their numbers mushroomed to almost a 1,000 patients in more than a hundred homes as I combined my skills of Gregg Shorthand and typing 100 words per minute with a custom-made medical records keeping program that I had devised. The result enabled me to see patients on house calls in a much more time-conserving fashion.
   Over the past decade the State of California (among other states) has been discharging developmentally disabled patients from such huge hospitals as Sonoma and Agnews State Developmental Centers back into the community into three-bedroom, six bed homes staffed by minimum wage caregivers with no medical background and often little command of the English language. By not having to pay for any medical professionals the State of California saved some $50,000 per year per patient. The only drawback was that such frail patients suffered a 68 percent higher death rate their first year out in the community.
   My solution was to serve as "House Doctor" by visiting these patients in their home every month or two and keeping all of their medical records with me 24 hours a day in a laptop computer. That way I could handle 95 percent of their medical problems by phone in between visits; and intervene early enough on in their medical problems to avoid the pattern of crisis emergency room care that was usually the fate of these patients. Few doctors are willing to see then in their waiting rooms because they tend to soil furniture, assault other patients, make a lot of noise, and in general create chaos.

   Enter, in August of 2001, Dr. Gerald Rogan, Medical Director for NHIC (National Heritage Insurance Co.), the contract private fiscal intermediary for Medicare in Northern California. Dr. Rogan noted that I was seeing more Board and Care Home patients than any other doctor in the State; and convinced himself that I was following in the steps of a legion of other doctors who often chose Board and Care Home patients for a quick and easy buck because neither the patients nor their caregivers had any real grasp on whether such doctors were actually performing any true service. In consequence, NHIC began what many doctors feel has been a "witch hunt" by harassing all doctors of various hues who provide home health services: internists, general practitioners, podiatrists, psychiatrists, and psychologists.
   The result was a spate of $60,000 fines across the board, beginning in 1998, to virtually all such providers by alleging unnecessary medical services; and putting the onus onto the doctor to prove that he was NOT committing fraud. Guilty until proven innocent.
   Testifying under oath at an administrative law judge hearing in April of 2003, Dr. Rogan stated that he felt I surely had been committing fraud: else how could I have seen twice as many patients on house calls as most doctors see in their offices some days? Unconcerned about having any actual evidence, Dr. Rogan, who does not personally use a computerized medical records-keeping program, conjectured that I must have fabricated many of my progress notes out of whole cloth from the comfort of my home without bothering to go and see the patients. Apparently his main beef was that the vast majority of my patients had the same temperature and respiratory rate, ignoring the significance of the Tilde symbol (~), which means "approximately" and which is appropriate to use in describing an examination of a patient who otherwise has a normal exam, and is being seen primarily for monitoring of some chronic condition such as Hypertension or Diabetes or for side effects of psychotropic drugs, such as dry mouth, constipation, dizziness, lethargy, and weakness. All such persons are of course likely to have temperatures close to 98.6 degrees Fahrenheit: we all do, as human beings, when we are not suffering from an acute infection. Likewise, we all, as human beings, have a respiratory rate of about 16 to 18 breaths per minute-unless we are very old or have some kind of medical problem with our lungs.
   Consequently, Dr. Rogan, or person or persons unidentified at NHIC took it upon himself/themselves to put me on what is called "100-percent prepayment review." Dr. Rogan denied knowing just who at NHIC as responsible for taking the highly unusual step of placing me on prepayment review, when the standard protocol for investigating doctors is to first place them on POST-payment review by auditing between 10 and 30 charts.
   Dr. Rogan may not have known that a State of California fraud investigator had already visited me in 1997 and walked away empty-handed; nor that one of his own hearing officers, Tammy Wallin, had already vindicated my practice pattern in 1997, giving me a clean bill of health, and judging my monthly house calls to Board and Care patients to be "medically necessary."
   And so I received a letter from NHIC dated August 14 of 2001 informing me that I would henceforth be on 100-percent prepayment review for three to six months until NHIC was satisfied that all of my services were "medically necessary." Subsequently, NHIC's reviewers judged 93 percent of my visits to be NOT medically necessary; and downcoded the remaining 7 percent of my visits to less comprehensive services. In consequence, the "three to six months" of prepayment review has become stretched out to what will be two years as of next month; and there is no assurance that it will ever end.
   Seeing that I was being paid only a pittance, but determined to weather the NHIC storm so that I could continue to serve my patients, I appealed all of my rejected and downcoded claims through the lengthy appeals process that NHIC requires. Such a process included, along the way, some half-dozen "in person" hearings, in which I met face-to-face with hearing officers such as Saundra Pleska, a bureaucrat whose background was as a law clerk. She provided such cursory and untenable critique of my appeal as to berate me for not providing the date of service on a progress note, when in fact the date of service was right there on the page in plain view. 
   In addition, Mrs. Pleska-an appointee and employee of NHIC-berated me for seeing as many as 32 patients in a day, which she apparently considered a huge number providing de facto evidence of fraud, comparable to a lawyer billing for more than 24-hours of work in a single day. Of course if one takes the trouble to do the arithmetic, one can readily see that it averages out to 15 minutes per patient in an 8-hour day; hardly a "Medicare Mill" type of operation. To add insult to injury, virtually all of my initial visits were rejected out of hand as being "not medically necessary." Now how on God's Green Earth can an initial visit be deemed "not medically necessary?"
   To avoid having to answer this embarrassing question, NHIC chose to arbitrarily leech out 40 initial visits from the first batch of claims that would otherwise be reviewed at the first Administrative Law Judge Hearing-a hearing which, in contrast to lower levels of appeal, would actually be heard by someone not on salary with NHIC and not responsible to Dr. Rogan.
   The initial so-called "fair hearings" found NHIC's "Fair Hearing Officers" claiming that virtually all of my documentation lacked a so-called "chief complaint" and/or "history of present illness" and/or "examination of a corresponding bodily part" to justify such visits as having a reasonable purpose-at least in the view of some half a dozen NHIC hearing officers, all of whom are on salary with NHIC, and all of whom are responsible to Dr. Rogan.
   Although purportedly unbiased and free of influence from Dr. Rogan, Hearing Officer Mary Ann King's report included two pages of quotes from him, therein opining that house call visits to Board and Care Home patients were almost never "medically necessary" because such patients would have been placed in a nursing home in the first place if they had any truly significant medical problems.
   However, when I finally reached the Administrative Law Judge level of appeal, where the hearing officer was a judge not on salary from NHIC and not responsible to Dr. Rogan, a court appointed doctor reviewed all 203 charts of the first batch of 1,100 claims that were being appealed and noted that not only were there no grounds for fraud, but that 100 percent my visits were indeed medically necessary.
   This court-appointed physician, Dr. Glen Malley, stated flatly that there was always present the necessary "chief complaint," "history of present illness," and "examination of a corresponding bodily part." One only had to take the trouble to look for them. Only the most cursory inspection could miss such evidence, he stated. Perhaps, he conjectured, the review was made more difficult for NHIC's hearing officers because of the very small (six-point) type in which I had laser-printed my progress notes. Needless to say, the need for using six-point type-to reduce most progress notes to a single page-simply reflects the fact that my progress notes were voluminous and comprehensive, which of itself serves to vindicate the quality of my services.
   So scathing was the decision handed down by Judge Flanagan, that he actually used a truncated form of the pejorative "bald-faced lie" ("bald accusations" was his exact term) in describing the unabashed liberties with which Hearing Officer Saundra Pleska couched her opinions.
   No less scathing was Judge Flanagan's evaluations of NHIC's other hearing officers and of Dr. Rogan himself. Judge Flanagan's decision made it clear in a footnote that Dr. Rogan's last-ditch attempt to claim some kind of educational program for me was only a hollow claim, devoid of any substance: there was simply no evidence presented to support such a contention. (Dr. Rogan had stated that the drastic measure of 100-percent prepayment review as ordinarily a measure of last resort that followed only after both a post-payment audit and an educational program for the doctor were first instituted; and the doctor's documentation continued to be inadequate.

   Unfortunately, Judge Flanagan's opinion remains only that. He apparently has no power to make NHIC take me off prepayment review nor to make it pay me a single penny of the $13,000 in this first batch of 203 disputed claims. The remaining 900 claims in dispute are still awaiting court dates that are several months away.
   Meanwhile, as my reward for being a patient Medicare provider who has continued to faithfully serve his patients for 23 months without being paid, I have suffered financial devastation. I have a wife and two daughters ages 11 and 15, and see no way that I can now provide for them. I was forced to liquidate all my assets, including a four-unit building in San Francisco intended for my retirement, which I had to sell on short notice below market value. All of my stocks and bonds had to likewise be liquidated. The family Steinway piano had to be sold. All of my liquidated resources have now been depleted and I now face imminent bankruptcy. I borrowed from friends to keep my house out of foreclosure; but it now appears that it will go back into foreclosure soon if nothing is done.
   In an effort to encourage Dr. Rogan to do the right thing, Senator Barbara Boxer's office asked NHIC to expedite payment to me of the $13,000 that Judge Flanagan has ruled is owed me. Similarly, a physicians' and patients' advocacy organization, The Physicians Organizing Committee of San Francisco, has also pleaded with Dr. Rogan to take me off prepayment review and release the $13,000 that is being withheld.
   Unfortunately, Dr. Rogan is keeping me on prepayment review even as I write this. And I have yet to receive a single penny of the $13,000 in rejected and downcoded claims that Judge Flanagan has ruled legitimate and worthy of reimbursement. To cap my financial woes, my car has been repossessed so that I have no way to make the house calls for which I am not getting paid.
   Shades of Nazi Germany? Or The Boston Tea Party? Perhaps, but merely not as blatant. NHIC apparently enjoys the tremendous cost savings wrought by the harassment of doctors who serve the disabled. Without the kinds of medical services that I provide, many Board and Care Home patients-some of whom are far sicker than your average nursing home patient-will be doomed to a premature death.
   Dr. Rogan and NHIC have the option to appeal my case to higher and higher levels of hearings. But that could take years; and the chances are that, now being age 62, I will not outlive NHIC, which, with revenues of over $3 billion a year and teams of lawyers and bureaucrats, is likely to finish sending me to my financial death, and perhaps an early grave as well, simply by continuing to stonewall.
   But isn't that what Medicare wants? Or does the Medicare program sill care about its beneficiaries, as it once did? Apparently the only thing that might motivate NHIC to do the right thing is a public outcry at how it is impeding proper medical care to the most pitiable members of society. For NHIC's contract with Medicare is coming up for renewal. NHIC has already been caught looking the other way while a spate of unnecessary heart operations were performed at a hospital in Redding, California, raising the question of gross incompetence, at the very least, in administering the Medicare contract, thereby squandering millions of dollars in public funds. And, as I write this, I have just learned that the California Medical Association is investigating Dr. Rogan following complaints that he has been similarly harassing doctors who provide strong pain medication to terminally ill cancer patients, refusing to pay for their care.
   The question then boils down to this: Is Dr. Rogan really competent to be Medical Director of NHIC? Or is he merely following NHIC policy in order to improve their bottom line on the backs of our most vulnerable fellow citizens? 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 Studies. NHIC's predecessor-Blue Cross and Blue Shield-lost the Medicare contract after widespread fraud was discovered. Is history repeating itself with respect to NHIC? If that is the case, they too should be thrown out. 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 a chance.
   Dr. Rogan told me that he doesn't care what Senator Boxer or the Physicians Organizing Committee might advocate; nor will he comply with Judge Flanagan's 116-page supportive decision. He stated that NHIC doesn't have to answer to any of them. What, then, 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 than Sheep going to slaughter? Whatever happened to "due process?" Is it just a meaningless charade when it comes to Medicare patients?' Does NHIC in fact have super-judicial powers?
   This level of carrier misconduct must be addressed. It is harming both doctors and patients.




 

 

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