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Doctors block disclosure of Medicare data on payments of public money to doctors

The Medicare data bank is a treasure trove of valuable information when it comes to identifying fraud and abuse in the cost of health care.  It is also useful in identifying physicians with a pattern of significantly over-treating patients or who provide "medically improbable" care.  Nevertheless, the data bank is not available to the public, and media and watchdog groups cannot evaluate the data to identify abusive physicians.  The Wall Street Journal and the nonprofit Center for Public Integrity sought access to the database for more than a year and filed litigation before finally receiving access to a sample of the data for  2008, with the names of physicians redacted.

The paper and the nonprofit Center were defeated in identifying the names of apparently abusive medical care providers by a 1977 Florida case where the American Medical Association joined with a Florida physician group, claiming a privilege against the disclosure of this "private" information. [Why the amount of public money paid to a service provider should be "private"--meaning denied to the taxpayers--is a mystery to us.]  In any event, the Florida judge presiding over the case concluded that outsiders were not entitled to know where their money was being paid because taxpayers lacked a "compelling state interest" in knowing the information.  [If that may have been true in 1977, its certainly not true any longer with the cost of health care assuming an ever larger share of the federal budget and the country's gross domestic profit.]

Nevertheless, when a nonprofit group known as Consumer's Checkbook recently brought a follow-up case under the Freedom of Information Act, the federal appeals court ruled that the group could not prevail because it could not identify actual cases of fraud or abuse.  The Court not to address the Catch-22 aspect of its decision:  i.e., the public interest group couldn't investigate fraud without evidence, but it couldn't gain access to the evidence without documenting fraud.  Newt Gingrich, a prominent Republican activist, and Joseph Califano, Head of HEW under President Carter, and many other public figures have complained long and hard about the federal court rulings, but neither party has seen fit to take on the AMA and force a challenge to be heard by the US Supreme Court.

After evaluating a five-percent sample of the 2008 database with doctor's names encrypted, (provided at a post-litigation cost of $18,000.00), the Wall Street Journal and its partner non-profit organization were able to identify clear examples of apparently fraudulent--or at least grossly questionable conduct.  Among the outliers its found was a Family Practice physician who charged more than $144,000.00 to perform a sophisticated battery of sleep tests on 44 patients.  The Journal implied that an inside source had confirmed that the doctor in question was reimbursed $2.2  million dollars by Medicare in  2008.  The doctor's billings had increased 16-fold from 2006 to 2007, and she reportedly averaged nearly 18 times the national mean of billings for family-medicine practitioners. Six other family practitioners--out of tens of thousands--apparently out-earned her for the year (in terms of Medicare billings).  She was also the only provider, in any specialty, who performed or supervised all 29 sleep and nerve tests during the year. 

After an audit sometime during the past two years, the doctor has now closed the office where the questionable billings were generated, and the doctor told investigators that she no longer performs ANY of the 29 disputed tests.  An investigator hired to review her billings called her record of diagnostic testing "medically improbable."  She continues to work out of three separate offices in two states, and continues to bill Medicare and Medicaid, but told investigators that she no longers uses leeches because of concern over malpractice claims.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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