Stalking The Non-Compliant Physician: Health Reform’s Dark Side

Reform will drastically increase physician legal compliance obligations and potential liability under federal fraud and abuse statutes. Enhanced funding for enforcement, additional latitude for “whistleblowers,” and the suspension of the government’s need to prove “intent” will create a compliance environment many physicians will find problematic.

The Physicians Foundation and Merritt Hawkins, Health Reform and the Decline of Physician Private Practice: A White Paper Examining the Effects of the Patient Protection and Affordable Care Act on Physician Practices in the United States, October, 2010

“With every technology, there is a dark side. Sometimes you can predict it, but often you can’t.”

Hany Farid, Computer Scientist, Dartmouth, New York Times, January 1, 2011

There’s a new health reform movement out there. It’s called physician compliance. It has good intentions – to bring down or contain health costs by tracking physician ordering behavior. It has laudable motivations – stamping out fraud and abuse, eliminating ordering of profitable but unnecessary tests and procedures, enforcing new federal regulations, making medical practices more uniform and standardized in different regions of the country.

It uses different techniques and approaches to bring physicians into compliance - whistleblowers to spot offenders, computer protocols to guide ordering behaviors, electronic federal audits to identify coding abuses, new regulations compelling compliance, and creation of new organizations – accountable care organizations – using capitated payments to end fee-for-service billing.

By encouraging physicians to work in collaborative teams, and by identifying those physicians who violate compliance rules, reformers hope to shed light on what they consider to be a dark side of medicine - physician ordering practices that enhance income for themselves and hospitals in which they practice.

As with any top-down, Washington-based government program to regulate private behavior, there are dark sides to what government is trying to do.

• In the first place, government compliance is by its very nature retrospective. Regulators are not present at the physician-patient encounter and have little idea of the circumstances, dynamics, or context of what occurred or what was ordered at the point of care.

• Second, medical coding is so confounding, confusing, and byzantine that nobody – including government – understands its nuances and complexities. The reality is that about 20% of physicians undercode while about 5% overcode.


• Third, much if not most of the $60 billion of fraud and abuse that occurs in Medicare, is carried out by non-physicians who steal patients’ Medicare identity cards, set up storefront Medicare and Medicaid mills, and bill for items such as wheelchairs and other equipment or devices.

• Fourth, herding doctors into accountable care organizations and consolidating care in large medical institutions, which have the administrative skills only large organizations possess, will not necessarily lower costs. Costs are invariably higher for hospital charges for inpatients and outpatients, in part due to “facility fees,” than for those performed by physicians outside hospital walls or jurisdictions.


• Fifth, some 70% to 80% of care is delivered by independent private physicians on a fee-for-service basis, usually through existing, often very sophisticated billing systems.. Converting or modifying these systems or integrating them with electronic billing systems will be a herculean, long-term task, fraught with certification and standardization difficulties.

• Sixth, there is a Big Brother aspect to all of this. Already computer controlled camera surveillance systems are being installed in hospital rooms. These systems come with ominous computer-generated voices that announce to doctors and nurses, “ You have not washed your hands.”

I can foresee camera. face recognition, and computer surveillance systems in doctors’ offices. I pray this will not occur. These systems have the potential to destroy confidentiality, limit personal freedoms, and induce physicians paranoia. Privacy is central and essential to effective medical care.

Besides as Eric. E. Schmidt, CEO of Google commented after his firm’s decision not to install a face-recognition system,“ You want to avoid enabling stalker behavior.”