Viewpoint

This branch needs pruning

FROM THE CHIEF MEDICAL EDITOR

Larry E. Patterson, MD

A favorite gathering of mine at the annual ASCRS•ASOA meeting is the Government Relations General Session. This year’s speaker, Jonathan Turley, JD, delivered arguably one of the best talks I have heard at any meeting (view Mr. Turley’s presentation at http://tinyurl.com/z2rn7mg). Mr. Turley, a professor at George Washington University Law School, said the “fourth branch of government,” all those regulatory agencies comprised of unelected people, are wielding increasingly greater power over our professional (and personal) lives.

It boils down to this: While Congress passes laws, this growing army of out-of-control bureaucrats are devising and executing the details. These groups have little oversight, Mr. Turley told his listeners. Though they have no power to enact laws, their policies and rules have the power of law.

While Turley is a Democrat, he spared neither political party with regard to its use of the fourth branch. He railed against the Bush administration but even more against the Obama administration for this power shift. Although sympathetic to the current administration, he strongly opposes its circumventing Congress by regulatory overreach. Representing the House of Representatives’ Republican Conference this year in a lawsuit against the Obama administration regarding Affordable Care Act (ACA) insurance subsidies, Mr. Turley argued that the subsidies had been unconstitutionally funded. The judge agreed with him.

There’s fraud, and then there’s …

A related matter that Frank Price, MD told me about is disturbing. It is one sentence in the Stark Law and Anti-kickback statute that apparently changed the definition of fraud for medical billings (http://tinyurl.com/jjyb8h8). Prior to the ACA, fraud was defined as having intent to commit fraud. Now, federal agencies do not need to prove intent, at least that is what it says on some sites. On others, the old definition of willful and knowingly is still there (http://tinyurl.com/hdbjdgq). Does this mean that when an innocent mistake is made it’s potentially fraudulent, with the alleged violator helpless to face criminal penalties and fines? As you know, many of our coding rules are ambiguous at best.

Mr. Turley said when an agency of this fourth branch takes action against someone, that person does not have the due process and other protections inherent in standard legal proceedings. Moreover, if it spills over into judicial hearings the judge is only focused on whether the agency has followed protocol and regulations — not if the process is fair or one’s rights have been protected. If you think you’re invulnerable, think again. I have seen the fruit of this nonsense.

It’s reasonable to argue that most people prosecuting these cases could care less about intent, and their sole interest is advancing their careers: In 2012, the U.S. Department of Justice reported a 93% conviction rate, up from 75% in 1972. OM