Health Care Fraud – The Perfect Storm

Today, health care fraud is all over the news. There undoubtedly is fraud in health care. The same is true for every business or endeavor touched by human hands, e.g. banking, credit, insurance, politics, etc. There is no question that health care providers who abuse their position and our trust to steal are a problem. So are those from other professions who do the same.

Why does health care fraud appear to get the ‘lions-share’ of attention? Could it be that it is the perfect vehicle to drive agendas for divergent groups where taxpayers, health care consumers and health care providers are dupes in a health care fraud shell-game operated with ‘sleight-of-hand’ precision?

Take a closer look and one finds this is no game-of-chance. Taxpayers, consumers and providers always lose because the problem with health care fraud is not just the fraud, but it is that our government and insurers use the fraud problem to further agendas while at the same time fail to be accountable and take responsibility for a fraud problem they facilitate and allow to flourish.

1. Astronomical Cost Estimates

What better way to report on fraud then to tout fraud cost estimates, e.g.

– “Fraud perpetrated against both public and private health plans costs between $72 and $220 billion annually, increasing the cost of medical care and health insurance and undermining public trust in our health care system… It is no longer a secret that fraud represents one of the fastest growing and most costly forms of crime in America today… We pay these costs as taxpayers and through higher health insurance premiums… We must be proactive in combating health care fraud and abuse… We must also ensure that law enforcement has the tools that it needs to deter, detect, and punish health care fraud.” [Senator Ted Kaufman (D-DE), 10/28/09 press release]

– The General Accounting Office (GAO) estimates that fraud in healthcare ranges from $60 billion to $600 billion per year – or anywhere between 3% and 10% of the $2 trillion health care budget. [Health Care Finance News reports, 10/2/09] The GAO is the investigative arm of Congress.

– The National Health Care Anti-Fraud Association (NHCAA) reports over $54 billion is stolen every year in scams designed to stick us and our insurance companies with fraudulent and illegal medical charges. [NHCAA, web-site] NHCAA was created and is funded by health insurance companies.

Unfortunately, the reliability of the purported estimates is dubious at best. Insurers, state and federal agencies, and others may gather fraud data related to their own missions, where the kind, quality and volume of data compiled varies widely. David Hyman, professor of Law, University of Maryland, tells us that the widely-disseminated estimates of the incidence of health care fraud and abuse (assumed to be 10% of total spending) lacks any empirical foundation at all, the little we do know about health care fraud and abuse is dwarfed by what we don’t know and what we know that is not so. [The Cato Journal, 3/22/02]

2. Health Care Standards

The laws & rules governing health care – vary from state to state and from payor to payor – are extensive and very confusing for providers and others to understand as they are written in legalese and not plain speak.

Providers use specific codes to report conditions treated (ICD-9) and services rendered (CPT-4 and HCPCS). These codes are used when seeking compensation from payors for services rendered to patients. Although created to universally apply to facilitate accurate reporting to reflect providers’ services, many insurers instruct providers to report codes based on what the insurer’s computer editing programs recognize – not on what the provider rendered. Further, practice building consultants instruct providers on what codes to report to get paid – in some cases codes that do not accurately reflect the provider’s service.

Consumers know what services they receive from their doctor or other provider but may not have a clue as to what those billing codes or service descriptors mean on explanation of benefits received from insurers. This lack of understanding may result in consumers moving on without gaining clarification of what the codes mean, or may result in some believing they were improperly billed. The multitude of insurance plans available today, with varying levels of coverage, ad a wild card to the equation when services are denied for non-coverage – especially if it is Medicare that denotes non-covered services as not medically necessary.

3. Proactively addressing the health care fraud problem

The government and insurers do very little to proactively address the problem with tangible activities that will result in detecting inappropriate claims before they are paid. Indeed, payors of health care claims proclaim to operate a payment system based on trust that providers bill accurately for services rendered, as they can not review every claim before payment is made because the reimbursement system would shut down.

They claim to use sophisticated computer programs to look for errors and patterns in claims, have increased pre- and post-payment audits of selected providers to detect fraud, and have created consortiums and task forces consisting of law enforcers and insurance investigators to study the problem and share fraud information. However, this activity, for the most part, is dealing with activity after the claim is paid and has little bearing on the proactive detection of fraud.

4. Exorcise health care fraud with the creation of new laws

The government’s reports on the fraud problem are published in earnest in conjunction with efforts to reform our health care system, and our experience shows us that it ultimately results in the government introducing and enacting new laws – presuming new laws will result in more fraud detected, investigated and prosecuted – without establishing how new laws will accomplish this more effectively than existing laws that were not used to their full potential.

With such efforts in 1996, we got the Health Insurance Portability and Accountability Act (HIPAA). It was enacted by Congress to address insurance portability and accountability for patient privacy and health care fraud and abuse. HIPAA purportedly was to equip federal law enforcers and prosecutors with the tools to attack fr

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Making the Choice to Execute a Health Care Power of Attorney and Living Will

Advances in medical technology, recent court rulings and emerging political trends have brought with them a number of life-and-death choices which many have never before considered. The looming prospect of legalized physician-assisted suicide is one such choice which severely erodes the inherent value and dignity of human life. The much-publicized efforts of certain doctors to provide carbon monoxide poisoning or prescribe lethal drugs for their terminally ill patients constitute euthanasia. So may the removal of certain life-sustaining treatments from a patient who is not in a terminal condition. Euthanasia and willful suicide, in any form, are offenses against life; they must be and are rejected by the vast majority of U.S. states.

However, people faced with these difficult dilemmas should be made aware that there are morally-appropriate, life-affirming legal options available to them. One such option, for Catholics and others, can be a “health care power of attorney” and “living will.” South Carolina State law allows you to appoint someone as your agent to make health care decisions for you in the event you lose the ability to decide for yourself. This appointment is executed by means of a “health care power of attorney” form, a model for which can be obtained from your attorney.

A health care power of attorney can be a morally and legally acceptable means of protecting your wishes, values and religious beliefs when faced with a serious illness or debilitating accident. Accordingly, for persons wishing to execute health care powers of attorney, see the following instructions and guidance from the authoritative teachings and traditions of various religious faiths.

The intent of the health care power of attorney law is to allow adults to delegate their God-given, legally-recognized right to make health care decisions to a designated and trusted agent. The law does not intend to encourage or discourage any particular health care treatment. Nor does it legalize or promote euthanasia, suicide or assisted suicide. The health care power of attorney law allows you, or any competent adult, to designate an “agent,” such as a family member or close friend, to make health care decisions for you if you lose the ability to decide for yourself in the future. This is done by completing a health care power of attorney form.

You…

o Have the right to make all of your own health care decisions while capable of doing so. The health care power of attorney only becomes effective when and if you become incapacitated through illness or accident.

o Have the right to challenge your doctor’s determination that you are not capable of making your own medical decisions.

o CAN give special instructions about your medical treatment to your agent and can forbid your agent from making certain treatment decisions. To do so, you simply need to communicate your wishes, beliefs and instructions to your agent. Instructions about any specific treatments or procedures which you desire or do not desire under special conditions can also be written in your health care power of attorney and/or provided in a separate living will.

o Can revoke your health care power of attorney or the appointment of your agent at any time while competent.

o May not designate as your agent an administrator or employee of the hospital, nursing home or mental hygiene facility to which you are admitted, unless they are related by blood, marriage or adoption. 1996

Your agent…

o Can begin making decisions for you only when your doctor determines that you are no longer able to make health care decisions for yourself.

o May make any and all health care decisions for you, including treatments for physical or mental conditions and decisions regarding life-sustaining procedures, unless you limit the power of your agent.

o Will not have authority to make decisions about the artificial provision of nutrition and hydration (nourishment and water through feeding tubes) unless he or she clearly knows that these decisions are in accord with your wishes about those measures.

o Is protected from legal liability when acting in good faith.

o Must base his or her decisions on your wishes or, if your wishes cannot be reasonably ascertained, in your “best interests.” The agent’s decisions will take precedence over the decisions of all other persons, regardless of family relationships.

o May have his or her decision challenged if your family, health care provider or close friend believes the agent is acting in bad faith or is not acting in accord with your wishes, including your religious/moral beliefs, or is not acting in your best interests.

CONSIDERATIONS FOR ALL PEOPLE FROM CHRISTIAN/CATHOLIC TEACHING

The following is an attempt to gather information from the doctrines of Christianity, Catholicism, and Judaism to see if there are any commonalities with regard to health care agencies and living wills. We will see that all three religions have placed a value on dying with dignity and the right of the person to direct how their dying process will occur.

A major tenet of the faith is that it is unethical to take a life. It is not the highest of all values to stay alive, but you cannot affirmatively take steps to kill someone. The church is strongly against euthanasia and suicide. But often if the patient and medical care providers permit nature to take its course without heroic intervention, the person’s life may be taken by God.

This is a narrow path. Taking a life is inappropriate; on the other hand, using heroic medical measures to keep a body biologically functioning would not be appropriate either. Mere biological existence is not considered a value. It is not a sin to allow someone to die peacefully and with dignity. We see death as an evil to be transformed into a victory by faith in God. The difficulty is discussing these issues in abstraction; they must be addressed on a case-by-case basis. The Christian church’s view of life-and-death issues should ideally be reflected in the living will and health-care proxy.

Roman Catholic teaching celebrates life as a gift of a loving God and respects each human life because each is created in the image and likeness of God. It is consistent with Church teaching that each person has a right to make his or her own health care decisions. Further, a person’s family or trusted delegate may have to assume that responsibility for someone who has become incapable of making their decisions. Accordingly, it is morally acceptable to appoint a health care agent by executing a health care power of attorney, provided it conforms to the teachings and traditions of the Catholic faith.

While the health care power of attorney law allows us to designate someone to make health care decisions for us, we must bear in mind that life is a sacred trust over which we have been given stewardship

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