When Your "Free" Annual Check-up Isn't Free

A good reminder from the Kaiser Family Foundation (and broadcast on NPR's "Morning Edition" today: The ACA requires that insurers pay for an annual physical with no out-of-pocket payment by the insured patient, but that doesn't cover "extra" services that are offered during the same visit.

What's "extra." Like so much in health care, it depends.

One patient, Christine Rogers, answered her doctor's screening questionnaire honestly when it asked about depression. Her mother had unexpectedly died in a nursing home 13 hours away, and she answered the questionnaire with "It was a horrible year. I lost my mom." That triggered a 5-minute conversation about depression and an additional charge - not covered by her insurer - of $76.06.

Ms. Rogers felt a bit betrayed by a screening process that depends upon honest answers to questions about a patient's physical and emotional condition and then adds to her bill at the rate of $912.72 an hour.

The hospital and physician group stood behind the charge but -- perhaps to avoid being highlighted by KFF and NPR -- wrote off the extra charge.

The take-away: The ACA guarantees you one free physical per year, but what's included in that free service may vary from provider to provider, with precious little guidance to constrain billing practices.

Caveat emptor, indeed.

Abortion: Legislative Update

We* had our 36th Annual Conference of the Professions here in Dallas yesterday. The official title was "Governmental conflict with standards and professional judgment: Case studies in Texas." Our keynote speaker -- Prof. David Orentlicher, M.D., J.D. -- was great, as were our panelists from the clergy, law, and medicine -- Dr. Charles Brown, TAMU School of Medicine; Shelly Skeen, JD – Southern Regional Director, Lambda Legal; and Rev. Danielle Ayers, Pastor of Justice, Friendship-west -- and our panel moderator, Rev. George Mason, pastor emeritus of Wilshire Baptist Church & founder of Faith Commons.

It didn't take a lot of imagination to read our open-ended title and conclude that abortion and gender-affirming care would figure prominently in the discussion. We did cover a number of other subjects, but these two topics dominated the discussion.

Coincidentally, today's Washington Post ran an article on the abortion bans around the country, with a focus on the vague language state legislatures use to describe exceptions to the ban, e.g.:

(Click on images to enlarge.)

Predictably, that vague language leaves physicians and hospital guessing about whether any particular patient's condition qualifies for termination of her pregnancy. The Conference explored this effect in some detail yesterday. If you missed it, this article is a very good guide to the issue.

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*The organizers of the Conference are:  SMU Dedman School of Law, the Dallas County Medical Society, the Dallas Bar Association, the SMU Perkins School of Theology, The University of Texas Southwestern Medical Center at Dallas, Faith Commons, and SMU’s Maguire Center for Ethics and Public Responsibility.

J.D. Degree is a Lousy Way to Get to a Health Care C-Suite

Becker's CEO Report had an article on Tuesday about "The most common degrees for healthcare CEOs," based upon a report by C-suite consulting firm Crist|Kolder. Lawyers are well represented in the ranks of CEO at universities, nonproft organizations, and for-profits, but within healthcare organizations? Not so much:

Fifty percent of healthcare CEOs have a MBA and did not study beyond it, compared to a cross-industry average of 43 percent, according to the report. Another 21.2 percent received only a bachelor's degree. 

More healthcare CEOs hold a MD or PhD than chief executives of any other industries; over 15 percent can call themselves "doctor." 

In addition, 4.5 percent have their JD, and 9.1 percent hold a Master's in any field. 

Hospice Director Sentenced in $150+ Million Fraud Scheme

A hospice medical director was sentenced yesterday to 50 months in prison for his role in a scheme that involved the submission of over $150 million in false and fraudulent claims to Medicare for hospice and other health care services. According to DOJ's press release: 

According to court documents, from 2009 to 2018, Jesus Virlar-Cadena, 52, served as the medical director of the Merida Group, a large health care company that operated dozens of locations throughout Texas. Evidence at the trial of co-defendants Rodney Mesquias, Henry McInnis, and Francisco Pena, showed that the Merida Group marketed their hospice programs through a group of companies known as the Merida Group. They enrolled patients with long-term incurable diseases, such as Alzheimer’s and dementia, as well as patients with limited mental capacity who lived at group homes, nursing homes, and in housing projects. In some instances, Merida Group marketers falsely told patients they had less than six months to live. They also sent chaplains to the patients based on the false pretense they were near death. [emphasis added]

In order to bill Medicare for these services, the Merida Group hired Virlar and other medical directors, but made payment of their medical director fees contingent upon an agreement to certify unqualified patients for hospice. In addition to regular medical director payments, Virlar received luxury trips, bottle service at exclusive nightclubs, and other perks in exchange for his certification of unnecessary hospice patients. In exchange for these illegal kickbacks, Virlar himself certified over $18 million in unnecessary hospice services as part of the over $150 million conspiracy.   

Putting aside the financial crime involved in this case. Lying to these patients that they have a terminal illness is a gross violation of the interests of a vulnerable population. 

Tennessee Physician Sentenced in $1.88 Million Health Fraud Case

A Tennessee doctor will have 7 years in federal prison to contemplate his crimes against the Medicare program and his patients. 

He was convicted on a 36-count indictment in the following scheme, as described by the U.S. Attorney for the Middle District of Tennessee:

The defendant, through his medical clinic in Clarksville, billed federal health insurance programs for hundreds of medically unnecessary services, including unnecessary office visits and steroid injections. The evidence at trial showed that he required Medicare beneficiaries and other patients to visit his clinic as many as six times each month and to undergo unnecessary steroid injections in order to obtain their prescriptions. The evidence also showed that the defendant altered progress visit notes in his patients’ medical records to justify higher billing rates.

The physician was ordered to pay over $1 million in restitution and serve three years of supervised release.  He was also fined $195,000 and must forfeit previously seized assets worth approximately $900,000.

This isn't the physician's first encounter with the legal system. In 2022 the Administrator of DEA revoked his authorization to prescribe controlled substances, based upon findings that he indiscriminately and dangerously prescribed large amounts of oxycodone and other controlled substances. See Fed. Reg., Jan. 19, 2022, at 2986. 

Health care fraud is as health care fraud does.

Chamber of Commerce Is Denied an Injunction to Halt Medicare Drug Price Negotiations

Happy to do the bidding of Big Pharma, the US Chamber of Commerce sued the Biden Administration to stop the Drug Price Negotiation Program created by the federal Inflation Reduction Act,  42  U.S.C.  §§ 1320(f), et  seq in its tracks on the theory that this program violates due process. The Chamber was joined by a handful of affiliates -- along with AbbVie, Inc., manufacturer of the lucrative Imbruvica (used to treat Chronic lymphocytic leukemia (CLL) and small lymphocytic lymphoma (SLL)) and is one of eight such suits filed around the country.

On Friday a Trump appointee in the Southern District of Ohio denied the Chamber's motion for a preliminary injunction, as well as the government's motion to dismiss. The opinion is a Civil Procedure teacher's dreams, covering such juicy first-years topics as:

• subject-matter jurisdiction
• standing, especially associational standing
• ripeness
• the standards for a preliminary injunction, especially irreparable harm if denied and likelihood of prevailing on the merits.

Dayton Area Chamber of Commerce v. Becerra, S.D. Ohio, September 29, 2023, No. 323cv00156SDOh/5.

It's hard to say how long this victory for HHS will last. Plaintiffs were ordered to file an amended complaint by October 13, and HHS will have until October 27 to respond, so it will be at least November before there's another ruling. Meanwhile, discovery will continue.