Jewish World Review Oct. 13, 2003 / 17 Tishrei, 5764
Drs. Michael A. Glueck & Robert J. Cihak
Medicare defrauds itself
In a free society, the purpose of tort and criminal law (besides enriching
lawyers) is to deter and punish wrongdoers, ideally a small minority of
people in the society. Justice requires that wrongdoers be treated as
equally as possible, and that the punishment should be commensurate with
offense. The Biblical precept, "An eye for an eye" also means "An eye, but
no more." And even though we know that some political influence on the uses
of law is inevitable and that rich people get better lawyers than poor
people, we accept it as a fact of life.
We accept it, oddly enough, because the vast majority of us aren't
criminals, and don't expect to find ourselves ensnared in a legal system
that's been redesigned to turn us all into criminals, and terrorize us with
extravagant punishments, capriciously visited on unlucky human scapegoats.
And, yes, that's exactly what's happening in America today. In these pages,
you've read about some of the penalties levied for honest mistakes on
tax returns, for draining a pond on private property without getting
government permission, and for saying the wrong word to the wrong person.
Our legal system no longer merely deters a few criminals; it creates them
the millions, through its complexity and arbitrariness.
Look, for example, at the current legal status of your typical medical
criminal - we mean physician.
But other people get off far more easily - if they're executives of major
corporations or politically connected.
For example, at last month's annual meeting of Association of American
Physicians and Surgeons (AAPS) [http://www.aapsonline.org] in Point Clear,
AL, Theresa Burr, a former claims examiner for Blue Cross Blue Shield of
Florida and whistleblower described her personal observations of the
Medicare fraud perpetrated by Blue Cross Blue Shield of Florida in the
and 90s. Burr also describes part of her experience in the Summer 2003
of the Journal of American Physicians and Surgeons.
Burr saw other employees follow company policies and do many things she
considered unethical and the federal Department of Justice later found
illegal. Doctors and suppliers who complained about the company later found
their payments delayed or withheld. Because the company denied payment for
oxygen, some patients died, according to Burr. Many patients were
capriciously denied many other life-supporting services.
She also saw her former employer delay, shred or delete thousands and
thousands of claims submitted by patients, doctors, and medical suppliers.
She found bins of mail claims in the mail room headed for the shredding
machines. She saw the company delete whole blocks of electronic claims
within a certain time period from the claims processing computer.
The federal government awarded a contract to Blue Cross Blue Shield of
Florida (BCBSF) to process claims for Medicare beneficiaries, their doctors
and suppliers, and to distribute payment for the claims. The US Department
of Justice found Blue Cross Blue Shield of Florida guilty of gross
mismanagement, lying to the government and the public about the state of
claims, cheating the government (i.e., us taxpayers) of an estimated $900
million, according to Burr. Yet the government settled the dispute for $10
Part of the argument for leniency was that no other company was big enough
to handle the volume of paperwork. Yet at the same time that the Department
of Justice fraud investigation was underway the government awarded yet
another contract to the company.
Later, on top of this contract, and again despite admission of fraudulent
practices by BCBSF, the company was also awarded the contract to seek fraud
- and promptly found it - but on the part of Medicare patients and people
supplying goods and services to them.
Burr notes "Everyone that held positions of authority with this Carrier
stayed in their positions; one person even became President." She also says
"Fraud clearly pays if you are a Medicare Contractor."
Now let's compare with other government dealings.
We note a recent US Dept. of Labor report of unemployment compensation
overpayments to the unemployed in 2002 totaling $3.7 billion, on top of the
$37 billion validly paid out, compared with $0.27 billion underpaid.
Defense contracting has been rife with similar reports of possible and
outright fraud. Indeed, according to the General Accounting Office, the
Pentagon cannot account properly for well over $2 trillion (yes, trillion)
in disbursements. But business goes on, including all those juicy contracts
for the reconstruction of Iraq.
And when was the last time the CIA passed a standard government audit? Back
in the 60s - because that was the last time they let the auditors through
All of which leads to an interesting question. Why should the government
treat physicians, generally among the more honorable professions on earth,
as a bunch of criminals not due their civil rights? We call it fraudulent
abuse of the law.
One answer suggests itself - as justification for the continuing government
take-over of medicine. And your life!
Michael Arnold Glueck, M.D., is a multiple award winning writer who comments
on medical-legal issues. Robert J. Cihak, M.D., is a past president of the
Association of American Physicians and Surgeons and a Discovery Institute
honorary fellow and board member.
JWR contributors are Harvard trained diagnostic radiologists.
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