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July, 2004

Is There A Lawyer In The House?
Marin Doctor For Disabled Finds Damaging Evidence To Counter Medicare Slam"

In two previous front page Coastal Post articles (July of 2003 and February of 2004) The Coastal Post relayed the tribulations of a Marin doctor, Howard A. Thornton MD, who chose to specialize in making house calls to developmentally disabled adults living in group homes throughout the Bay Area.

It so happened that Dr. Thornton had the integrity to testify at an Administrative Law Judge hearing on behalf of a colleague-a psychologist who was being accused of Medicare fraud. His colleague was vindicated, but on the very day that the judge signed off on the decision, both Dr. Thornton and the other star witness of the psychologist at that hearing received notices from the private for-profit fiscal intermediary of Medicare-National Heritage Insurance Company [NHIC])-that they were being audited.

Dr. Thornton himself was placed on 100% prepayment review right off the bat, rather than first having a small sample of charts audited, which is the standard protocol.

Recently, Dr. Thornton found an internal memo from HCFA (the bureaucratic antecedent of the current federal agency now dubbed The Center for Medicare and Medicaid Services), dated in the year 2000, which advised NHIC that investigations of doctors should begin by being as minimally intrusive as possible, starting out with only a post payment audit of a small number of charts (perhaps 10 to 30) before progressing to such extreme measures as 100% prepayment review.

Dr. Thornton's audit notice was dated August 14 of 2001, and specifically stated that the audit would only take three to six months to accomplish its goal. However, just getting through the gauntlet of some half dozen "fair hearings" by NHIC's own employees took over two years of concentrated work by Dr. Thornton and the Physicians Organizing Committee (POC). POC, and all-volunteer physician group fighting for the ethics of the medical profession, allocated over two dozen staff members to vindicate Dr. Thornton and reestablish care for nearly 1,400 elderly and disabled patients living in board and care homes. Yet, Dr. Thornton remains on 100% prepayment review even as this goes to press, one month short of three years later...

POC staff have had multiple discussions with NHIC officials in an attempt to remove the pre-payment review, And only recently has NHIC stated that there has been a "vast improvement" in Dr. Thornton's documentation, such that he will likely be taken off prepayment review following another 20 claims of equal quality.

Meanwhile, NHIC's onerous documentation requirements have been so unrealistically strict that it takes Dr. Thornton an hour or two for each visit to provide the kind of documentation that NHIC is requiring. This makes it impossible, for practical purposes, to provide this important service at more than "minimum wage" levels of profitability.

In consequence Dr. Thornton lost everything he owned over the past two years-his house, his car, his savings, his stocks-and now is homeless, relying on friends to provide him a place to sleep at night while he continues to "twist in the wind," waiting for NHIC to finally end his financial nightmare and take him off prepayment review.

Recently, Dr. Thornton had an interesting conversation with his billing service, which informed him that another of their clients-one who specializes in serving nursing home patients-was placed on 100% prepayment review by NHIC for a period of a year, but not until first having a post-payment review of four charts, followed by a second post-payment review of 40 charts.

This kind of evidence-along with the protocol just discovered from HCFA dated in the year 2000-seems to be proof positive to support the contention that NHIC acted against Dr. Thornton in an arbitrary and capricious manner motivated by retribution for testifying on behalf of a colleague; and such was against HCFA's own written policy and resulted in unnecessary financial devastation to Dr. Thornton.

Unfortunately, every single one of some half a dozen lawyers whom Dr. Thornton so far has contacted to take his case on a contingency basis has felt that such a "federal case" was unlikely to prevail. But that was before Dr. Thornton ran across the aforementioned internal memo from HCFA to NHIC. That, coupled with a pattern of treating other providers "according to Hoyle," makes it appear that Dr. Thornton may have a strong case against NHIC for having abused its audit powers in order to exact retribution.

Interested lawyers, or physicians facing similar situations should contact the advocacy organization that has been supporting Dr. Thornton in his fight against NHIC: The Physician's Organizing Committee, 450 Sutter St., Suite 1812, San Francisco, CA 94108, phone (415) 434-9335 and FAX (415) 434-2552. The POC has provided invaluable help to Dr.

Thornton during the past two years, furnishing witnesses to sit in on all of his hearings, as well as political pressures through one senator and a raft of government bureaucratsÉ without which Dr. Thornton's plight would have been far more devastating. POC is a patient and doctor advocacy organization that seeks to right the wrongs now being perpetrated on a vast scale by government and quasi-government agencies that are supposed to be providing adequate health care to patientsÉbut which are apparently shirking their responsibilities under intensely corrupting monetary and political pressures.

Information for this article was provided by Dr. Howard A. Thornton


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