Can your physician "opt out" of Obamacare mandates?

Obamacare components raise serious questions as to whether doctors have any rights in the President’s vision for the future of American medicine.
This article reprinted from January 2012

SAN DIEGO, June 28, 2012 – The destruction of quality in the American medical system will not result from one isolated event. Neither the ‘Affordable Care Act’, its restricted pay to physicians, nor even rationed care will immediately tip the scales toward a subpar medical system. Rather, the turn for the worse will take effect as several pieces of the Obamacare puzzle are set into motion over the next few years.

One piece of this puzzle likely to work against the success of Obamacare will be the creation of local managed care ‘medical homes’ called ‘Accountable Care Organizations’ or ACOs. These little fifedoms controlled by local medical community powerbrokers will pit physician against physician, with only hospital administrators and local medical society ‘leaders’ profiting above the fray.

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The other piece will be efforts by the government to force physicians to participate in Medicare and Obamacare plans. These Obamacare components raise serious questions as to whether doctors have any rights in the President’s vision for the future of American medicine.

As one astute physician noted to me recently, “doctors in practice need an ‘out’ to protect themselves against the upcoming tsunami.” What he was referring to are forces behind the scenes today attempting to eliminate any obstacles to Obamacare’s future success. Since the new law’s ability to deliver care to tens of millions of additional patients rests on its ability to cut costs, both Medicare and Obamacare reimbursement to doctors will be low.

A basic tenet of Obamacare is to force doctors to take untenable cuts in pay, all the while absorbing overbearing new regulations and mandates with little or no personal recourse. Proponents of the Obamacare law know that they can suffer concessions made in Washington, D.C. as long as the doctors delivering the majority of medical care in towns all across this land are made to heel to the new law’s demands in the end.

Some on the political left have conjured up schemes to tie physician state licensure to participation in Medicare and Obamacare. Others have taken solace in the notion that the regional ACOs themselves will be able to quash any doctor rebellions by simply using their control of the purse strings to withhold or limit how much local money each doctor will be paid for his services.

Unbeknownst to most people in or out of the healthcare arena, however, are the legal options available to physicians to either never enroll in Medicare or to voluntarily withdraw their participation in the government’s plan. The legal nuances of the doctor-Medicare relationship may shed light on options available to physicians to skirt inclusion in Obamacare if the law’s enforcers decide to use a heavy hand in mandating their participation.

Quoting a memorandum by the California Medical Association’s Solo/Small Group Practice Forum delegation on January 9, 2012, physicians became aware of a “bulletin circulated by the American Medical Association [referencing] an email authored by an unidentified Center for Medicare and Medicaid (CMS) employee who stated that a non-enrolled physician who treats Medicare beneficiaries must either involuntarily enroll in Medicare or else provide medical care free of charge. Apparently some embrace conscription of physicians and believe that the federal government can require physicians to work for free.”

The real challenge for physicians today is that they lack true representation by the American Medical Association (AMA). Since the AMA’s membership represents only about 15% of practicing community doctors in America, and since the AMA lost 12,000 member doctors in 2010 alone (and are expected to have lost at least that amount in the year 2011), the AMA has a real credibility problem with the nation’s physicians.

Furthermore, since the AMA publically signed on as a supporter of the Patient Protection and Affordable Care Act (PPACA) with only the implicit blessing of their limited membership, and many local and state AMA-affiliated medical societies remained eerily quiet during and after the contentious health care reform debates, the vast majority of doctors feel the organization betrayed them. America’s doctors need true representation to the public and to their elected representatives. Without proper representation, doctors are looking for ways to simply opt-out of all government health care plans.

Organizations like America’s Medical Society (AMS) have sprung up in the aftermath Obamacare’s passage to help physicians preserve and grow their independent practice of medicine. They believe that doctors have the right to privately contract with patients for their medical treatment.

Patients can seek reimbursement from Medicare by completing form CMS-1490S, which contains the following instructions: “Doctors, providers, and suppliers are required to submit claims to Medicare when providing covered services. You can reduce your out-of-pocket expense by seeing a doctor or supplier that is enrolled in Medicare and bills Medicare for the services provided.” See: https://www.cms.gov/cmsforms/downloads/cms1490s-english-instructions-DME.pdf

Such wording on an official Medicare form, promulgated by the Center for Medicare and Medicaid Services (CMS) would lead one to believe that a patient may seek treatment from a non-enrolled physician and may also pay ‘out-of-pocket’ for at least part of their medical care. This would seem to contradict the AMA email referenced above.

In the case Stewart v. Sullivan (816F.Supp. 281,282 283; D.N.J. 1992), Lois Copeland, M.D., a Medicare nonparticipating physician, filed a lawsuit challenging Medicare’s prohibition against charging Medicare beneficiaries more than the government’s stated limit. The court noted that penalties described in Social Security Act 1848(g)(4)(A) require proof of over-charges on a “repeated basis,” and in a “knowing and willful manner.” Although the court ruled that they did not find any infringement on private contracting, the case was dismissed.

Many physicians, feeling isolated and in fear of losing their practices due to severe cuts in reimbursement under Obamacare, are looking for remedies under the law to simply not participate, disenroll, or limit their involvement with the Medicare program. Many would like to continue to see patients by making private arrangements and/or by simply giving free care, but on their terms without unwieldy and unnecessary government regulations imposed by such participation.

Here are three potential approaches to understanding how physicians may resist Medicare and, by extension, Obamacare participation:

Physician enrollment in Medicare is voluntary. Sec.1866. [42 U.S.C. 1395cc] (a)(1) states a provider is “qualified to participate and eligible to receive payments from the government if s/he files with the Secretary” an agreement (i.e., voluntarily completes form CMS-855).

A non-enrolled physician has equal protections and due process rights under laws that prohibit the federal government from demanding a physician either serve (enroll in) Medicare or give free medical care to Medicare beneficiaries.

Some would say the US Constitution, Amendment Thirteen, protects every American from “conscription” in that:

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States …”

Section 1842(i)(2) does not restrict a physician to only two choices: “participating” or “non-participating.” Sec.1842. [42 U.S.C. 1395u] (i)(2) clearly states “The term … nonparticipating physician refers … to a physician who … is not a participating physician … (as defined in subsection (h)(1))” Sec. 1842(i)(2) is a conditional statement: if non-participating, then not participating.

But physicians obviously have more than two possible relationships with Medicare including “opted out,” never enrolled, voluntarily terminated, or employed by a Medicare Advantage IPA/HMO.

Section 1848(g)(4)(A) explains how a physician who is enrolled in Medicare should submit bills under Part B; it does not mandate every physician who is non-enrolled into enrollment, thus triggering mandatory claims submission.Section 1848(g)(4)(A) does not grant the federal government authority to press physicians into service (enrollment).

So what about patient reimbursement by Medicare? Can a patient pay his/her doctor and then seek reimbursement from Medicare? Most physicians will agree to bill the government, but if they don’t does this mean they must give free medical care to Medicare beneficiaries?

Healthcare attorney Andrew L. Schlafly wrote the following: “… even if the federal government attempted to assert control over payments by patients to disenrolled physicians, courts may well hold that it is unconstitutional for government to interfere with payments made by Medicare enrolled patients for services rendered by physicians who have disenrolled. We are unaware of a court case establishing or forbidding this option. Government may prefer not to test its authority over disenrolled physicians rather than risk a new precedent against its power.”

Later this year, the Supreme Court will decide on the merits of the Affordable Care Act’s individual mandate requiring all Americans to either participate in Obamacare or pay a penalty; then, the country will face challenges to other vexing issues associated with this legislation. Will a change in leadership at the White House and the Senate result in an outright repeal of the law? Will such a repeal automatically stop the regional, community-based ACOs dead in their tracks, as Obamacare foes hope? Will physicians be threatened and mandated to participate in Medicare and other government-sponsored health insurance plans regardless of the law’s fate?

Health insurance is an important and vital component of a free-market society. The question remains, should government mandate coverage? Obamacare mandates participation, additional fees, over a hundred new government agencies, and layers of additional bureaucracy, but fails to include rules to allow insurance entities to compete across state lines; it also lacks tort reform to lessen the costly and widely denounced practice of defensive medicine to ward off frivolous lawsuits.

It seems the question is not one of intent in criticizing the new health care law, but rather one of content. Obamacare gets it wrong at almost every turn. Instead of finding tax-credits and other incentives to help doctors care for the uninsured, it imposes paternalistic, over-bearing, and anti-competitive pressures to coerce providers of care to see more patients for less under unfavorable conditions.

Obamacare opponents are not against healthcare for all; nor are they against government-sponsored health insurance. What they find troubling is the notion that the government wants to control every minute detail of the medical care delivered between a doctor and a patient.

In the end, Americans will not abandon independent, physician-directed medical care centered around the core doctor-patient relationship. In the match up of Doctors vs. Obamacare, physicians have already opted-out—in due time, this reality will become more and more obvious.

Doctor Dorin is a Hopkins-trained, board-certified anesthesiologist, practicing in a large group in San Diego. He is a small business owner, a Commander in the US Navy Reserves, and the Founder/President ofAmerica’s Medical Society, Inc., (AMS) a non-profit corporation created to serve and educate physicians and the general public in matters of national health-care reform and medical politics.

 


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Adam Frederic Dorin, M.D., MBA

Doctor Dorin is a Hopkins-trained, board-certified anesthesiologist, practicing in a large group in San Diego. He is a small business owner, a Commander in the US Navy Reserves, and the Founder/President of America's Medical Society, Inc., (AMS) a non-profit corporation created to serve and educate physicians and the general public in matters of national health-care reform and medical politics

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