AAPS argues that the ability of non-Medicare enrolled physicians to order or refer for services provided by enrolled entities enables Medicare beneficiaries to pay directly for services provided by a non-enrolled physician of their choice without renouncind all their Medicare entitlement. Eliminating the ability to refer for Medicare items and services would increase the costs associated with obtaining services from non-Medicare physicians put those physicians at an economic and competitive disadvantage vis-à-vis Medicare providers. Furhter, enrolling or registering in Medicare or PECOS and obtaining an NPI require upfront and ongoing paperwork and monitoring on the part of physicians who do not wish to participate in Medicare.

More information on the AAPS suit is available on the APPS website.

• manipulation of anonymous complaints;
• conflicts of interest;
• violation of due process;
• breach of privacy; and
• retaliation against those who speak out.

The key issue in the case was whether AAPS had standing to bring the action. The TMB argued that only individual physicians have standing to sue, but AAPS argued that individuals could not typically prove a pattern of abuse involving other physicians and futher, physicians fear retaliation for complaining about the TMB. The Court noted that, “the Board manipulated anonymous complaints,” that the former Board president targeted physicians, and that “anonymous complaints allegedly were filed by a New York insurance company seeking to avoid paying … for claims.” The unanimous Court further described the allegations as “rather dramatic claims,” and sent the case to the federal trial court so that discovery can proceed.

The Fifth Circuit decision is available here.  The complaint, various other documents, and a link to an audiorecording of the oral argument are available at the AAPS website.

Heroic civil liberties lawyer, Harvey Silverglate writes about the war on physicians who attempt to alleviate the chronic pain of their patients. I just started reading his new book, Three Felonies a Day: How the Feds Target the Innocent, and will be writing more about that.

In the meantime, read this column. Not only are the Feds attempting to “to effectively control the practice of pain relief medicine”, they are now prosecuting people who try to educate the public about the issue under the guise of “obstruction of justice” charges. Did you ever think that the exercise of First Amendment speech would be criminalized in that way?

It seems pretty clear to me that through the abuse of authority, the Feds are going to force doctors to practice check box medicine. If it isn’t on the approved lists of treatments mandated by the Feds, doc’s can’t do it, even if it is necessary for the treatment of an individual patient.

This is Garlo Ward’s second podcast. It now has a name, Law, Health & Liberty. Click on the title to see the podcast. I chose this name because I see my firm’s job as protecting the liberty interests of health providers against the actions of government which undermine your ability to serve patients, consumers and residents.

In this podcast, I interview Andy Schlafly , the General Counsel of the Association of American Physicians and Surgeons (AAPS) about sham peer review and the incredible and absolutist power of Medical Boards throughout the country. As part and parcel of this discussion, we talk about the unfortunate transformation American jurisprudence has taken in the areas of regulated professions, away from traditional notions of justice. No where is this more evident than in the procedures of “due process”, set up in the regulatory and licensure schemes impacting health providers.

In the late 1700′s, the world witnessed two important revolutions, the War of American Independence and the French Revolution. When the dust cleared, America continued the tradition of presuming a man innocent until proven guilty. The French, meanwhile, presumed a man guilty until proven innocent.

It appears that the French model has been applied in administrative matters, including those involving peer review and Medical Boards.

Join Andy Schlafly and I as we discuss these issues by clicking on the icon below.