Newsletters > Summer 1997 > The Kennedy / Kassebaum Bill, by Jeff Coult

This January, legislation signed into law by President Clinton went into effect. The Kennedy/Kassebaum Bill, or ‘New Health Law’, covers a diverse arrangement of topics from health care coverage portability to medical saving accounts and changes to COBRA. Perhaps the most controversial aspect is the federalization of health care crimes. It’s important because of the number of persons affected and the radical changes it makes. It’s controversial because its intentions are dubious, and its effects -- vengeful and discriminatory -- do impact the US.

Alternative medicine practitioners have much to fear from this new law. While past government regulation could be called petulant and harassing, this new legislation portends serious legal implications for physicians practicing alternative medicine; namely federal criminalization of what is loosely called ‘health care fraud’. This article examines the new law, explains its effects on practitioners, and suggests alternative measures.

The relevant portion of the new Health Insurance Portability and Accountability Act of 1996, (hereinafter ‘the Act’) is Title II, idealistically called “Preventing Health care Fraud and Abuse; Administrative Simplification”.

• All types of supposed ‘fraud’ or ‘abuse’ are now under the microscope of federal investigators.
• The reporting of “negative findings” leaves far too much government discretion. One who harbors ill-will toward a physician can, legitimately or not, allege “negative findings.”
• Anybody associated with a health plan can report your actions to the government, and has a duty to do so.
• The Act gives monetary incentives for individuals to report ‘information on individuals and entities who engage in acts or omissions which constitute grounds for imposing sanctions’. The government’s objectivity could be obscured by the lure of easy money.
• Civil penalties may be assessed against those who submit claims for ‘a pattern of medical or other items or services that a person knows or should know are not necessary’. Until the government designates approved and medically-necessary treatments versus those that are not, there is no benchmark. This hurts both physicians and patients.

Physicians will have to guess at what treatments they may use, trying not to violate the Act. Meanwhile, patients who may wish novel or experimental treatments are at a loss if physicians won’t risk liability.

The price that physicians will have to pay, both in time and expense, hurts patients. The cost of defending these actions will be passed on to patients, via higher costs or fewer doctors.

If courts accept this as ‘fraudulent’ activity, practitioners are subject to criminal penalties for health care fraud. The practitioner could be fined, forfeit property, and be jailed for ten years.

The idea that courts could adapt civil penalty standards to the criminal definition of ‘fraud’ is not just a paranoid delusion, especially if there are hundreds of traditional medicine ‘quack busters’ making fraudulent activity reports on alternative medicine practitioners who are submitting claims for non-medically-necessary treatments. What do you think the government is going to do, if given justification to not only deny payments but punish claimants.

(Mr. Coult’s article contains excerpts from PracticeAlert, by Gregory D. Seeley and Matthew K. Seeley.)