By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com
“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog
As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.
A new “Rothschilds Conspiracy” has circulated every decade for at least the past 150 years. Usually, it has something to do with a mistrust of powerful banking interests, a public fondness for government conspiracies and in one a few decades ago, a supposed conspiracy fueled by general confusion over how a nascent thing called the “internet” would eventually come to oppress us all.
This new conspiracy (if 20 years ago is “new”) held that nothing bad would happen, as long as everything went well for the rich and powerful, as puppet masters of the government
But if certain people in society (at least the ones who were important enough to be under constant surveillance), didn’t obey their puppet masters, then an Orwellian “Big Brother ” bureaucrat would flip a switch and turn off an offending individual’s ability to get a job or buy anything.
This “Big Brother” concept is straight out of George Orwell’s 1984 (written in 1949, when 1984 was still a long way into the future.) In 1984, “Big Brother” only surveilled people who “mattered enough” to be worthy of oppression. Ordinary people, the “Proles” short for “proletariat,” who were the majority of society, didn’t matter enough to be watched.
This futuristic nightmarish scenario is in reality, what CMS and the government (working with powerful insurance companies), would call “a Tuesday.”
NPI Revocation Actions. Briefly, here is the procedural history. This week, I received a decision by the HHS DAB Appeals Board surrounding my doctor client’s NPI revocation case, which I had tried in 2021 to an ALJ in Washington D.C. (This timeline will become important later and I will tell you what my doctor did to get in trouble).
But for now, at trial, I was able to convince the ALJ to lower my client’s NPI revocation from 10 years (which had been imposed by CMS), to 3 years. Which we then appealed to the HHS Departmental Appeals Board, which issued the decision last week. That’s the history.
Your first question might be, “what the hell is an NPI number?” A national provider identifier number (NPI) is a way for the government and major insurance companies to surveil doctors to scare them into staying in line. Everything doctors do (that is covered by health insurance) must have a doctor’s NPI number attached. The government (CMS) can decide to terminate any doctor’s ability to earn a living by fiat, if the government is displeased in any of 14 ways listed under 42 C.F.R. §424.535(a).
I can tell you from experience, every doctor violates at least one of these §424.535(a) provisions a dozen times by noon every singe day when they bill insurance. My friend, Jane Orient, M.D., of the AAPS explains this in her book, Your Doctor is Not In!
One of the requirements for billing insurance, is that doctors certify compliance with “Stark Law” and the Anti-Kickback statute. After reading Stark law and the AKS, Dr. Orient wrote she couldn’t make heads or tails of either. Rather than lie and say she did understand it, she just turned her NPI number in and stopped taking insurance.
Why is this so scary? “Fear” is not a “defect,” but a “feature” of CMS’ Soviet-style plot. If doctors never know when Big Brother is coming for them (or what friend or neighbor might turn them in to the authorities), then the only way to stay safe, is not to do anything that might possibly anger Big Brother.
Consider too, the people at CMS who decide if the rules have been violated, the government attorneys who prosecute CMS’ decision, the expert witnesses who all work for CMS and testify against the physician, the ALJ who reviews CMS’ actions and the DAB Appeals Board which reviews the ALJ’s decision. . . all get their paychecks from the same HHS government agency . . . the agency which wrote the rules in the first place.
So, what did my client do to get in trouble? During COVID, when people weren’t coming to doctor’s offices, my client signed up with a telemedicine provider. Apparently, his NPI number was used on orders for Medical Equipment and Supplies my client doesn’t think he ordered. CMS requested the medical records and the telemedicine company couldn’t produce them. A failure to produce records is one of the 14 things that will get an NPI number revoked.
My argument was that the government had failed to prove an element of the case, that the patients ever belonged to my client. Just because his NPI number was used, doesn’t prove my client used it. He simply can’t fail to produce a record that never existed. And what CMS was really mad about, was the suspicion that the doctor was in out the suspicious billing. Rather that try to prove it, CMS just threw the book at him over bad record keeping.
Admittedly, my argument was little like arguing “my client was such a bad recordkeeper that the government can’t prove he is a bad recordkeeper.” So, the DAB did things the CMS way. It sat on the decision until the clock had run out on the ALJ’s 3 year revocation, until the third week of 2025 . . .a period spanning three presidencies, which effectively rendered the appeal of the 3-year revocation moot.
Sure, we can still go to the US District Court, where there are actual rules of evidence, but like Dr. Orient, by client has gotten disgusted. Which is why in 2024, you see doctors racing into cash only businesses like Medspas. . . .(to escape 1984.)